Qualified privilege defence for tax defaulters list publication upheld; fair and reasonable publication applies.

Approved

No redaction required

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000050

[2025] IESC 30

Dunne J. Charleton J. Woulfe J. Collins J. Donnelly J.

BETWEEN

WILLIAM BIRD

Plaintiff/Respondent

AND

ICONIC NEWSPAPERS LIMITED

Defendant/Appellant

JUDGMENT of Mr. Justice Maurice Collins delivered on 10 July 2025 PRELIMINARY

1. Is the publication by a newspaper of an article mistakenly identifying a person as a tax defaulter protected by qualified privilege so that, provided only that the publication is not actuated by malice, the publisher is shielded against liability in defamation at the suit of that person?

2. That is the essential question presented by this appeal. It raises important questions as to the scope of the defence of qualified privilege and in particular whether and in what circumstances that defence extends to defamatory statements published generally (or, as it is often put in the authorities, published to “all the world” or the “world at large”). Those questions in turn raise issues as to the interaction of the common law defence of qualified privilege (effectively preserved by section 18(1) of the Defamation Act 2009 (“the 2009 Act”)), the statutory qualified privilege defence provided for by section 18(2) of the 2009 Act and the defence provided for in section 18(3), as well as the relationship between those defences and the defence of fair and reasonable publication on a matter of public interest created by section 26 of the 2009 Act.

3. The material facts may be briefly stated. At the relevant time, section 1086 of the Taxes Consolidation Act 1997 (the “TCA”) required the Revenue Commissioners (“Revenue”) to publish in Iris Oifigiúil on a quarterly basis a list of delinquent taxpayers (colloquially referred to as the “Tax Defaulters List”, a usage followed here).1 The Tax Defaulters List includes the names of persons on whom a fine or other As and from 1 January 2022, publication of the Tax Defaulters List is governed by section 1086A TCA.

penalty was imposed by a court under the Tax Acts or otherwise in respect of an act or omission relating to tax and, in Part II, the names of persons who have entered into settlements with Revenue in respect of underpaid taxes, as well as details of the settlement reached (certain settlements are excluded from publication but it is not necessary to consider those exclusions further). Section 1086(3) also permits Revenue to cause the list to be publicised in such manner as it considers appropriate and it appears that, in practice, Revenue routinely provides a copy of the list to national and local media outlets.

4. The 7 June 2016 edition of Iris Oifigiúil included a Tax Defaulters List, Part II of which identified (inter alia) three companies – William Bird (Rollercoaster) Limited, William Bird (Sales) Limited, and William Bird Tramore Limited – as taxpayers that had entered into settlements with Revenue in respect of under-declaration of corporation tax, VAT and/or PAYE/PRSI. The address for each company was stated to be 97 Henry Street, Limerick.

5. The Limerick Leader is a well-known local newspaper published in Limerick. It is published online as well as in hard copy. It is one of a number of local newspapers published by Iconic Newspapers Limited (“Iconic”), the Defendant in the proceedings and the Appellant in this appeal. In accordance with its usual practice, Revenue sent a copy of the Tax Defaulters List to the Limerick Leader and its edition dated 11 June 2016 (which appears to have been published on 8 June 2016 and to have reached newsstands on 9 June 2016) included an article under the headline “Major settlements with Revenue in Limerick” (“the Article”) detailing a number of “major settlements against Limerick individuals” and including the following statements:

“Funfair/amusement activity operator William Bird, of Henry Street, reached three separate settlements for under-declaration of corporation tax and VAT, under-declaration of PAYE/PRSI and VAT, and under-declaration of corporation tax, in relation to three companies under his name.

In total, the monies paid to Revenue in his case amounted to €183,595.”

This article was also published online (though it was subsequently taken down in response to Mr Bird’s complaints about it).

6. William Bird, the Plaintiff in these proceedings and the Respondent in the appeal, was not named or otherwise referred to in the Tax Defaulters List provided to the Limerick Leader and, as a matter of fact, he had no connection to William Bird (Rollercoaster) Limited, William Bird (Sales) Limited or William Bird Tramore Limited. He did not live in Henry Street, Limerick. He was identified in the Article as a result of a mistake made by the journalist who wrote it. She gave evidence in the High Court but had some difficulty in explaining how she came to make that mistake: it appears that she either simply misread or misunderstood the information contained in the list and/or made an erroneous assumption (one which she made no attempt to verify) that, by reason of their names, the defaulting companies must necessarily be associated with an individual named William Bird. On any view, however, the mistaken identification of Mr Bird in the Article involved a significant lack of care.

7. Prior to the publication of the Article, the journalist made no attempt to contact Mr Bird, who is not a public figure of any kind and who was not known to her. Nor did she carry out a search in the Companies Registration Office in order to identify the directors and/or members of the defaulting companies. That is, perhaps, unsurprising. The Article was not, after all, intended or presented as a piece of investigative journalism. Neither was it a piece of “reportage” – the neutral reporting, without endorsement or adoption, of statements made by others on some subject of public controversy.2 Rather, the Article reported as fact that Mr Bird had reached settlements with Revenue in relation to three companies “under his name”, based – so the reader would have understood (and was intended to understand) – on the contents of the latest Tax Defaulters List. The task of accurately reporting the information in the List was not complex or burdensome. Even so – at least in its reference to Mr Bird – the Article here was materially inaccurate.

8. Mr Bird consulted solicitors and on 10 June 2016 they wrote to Iconic complaining that he had been seriously defamed and demanding an apology. Journalist and Iconic alike appeared to have difficulty in appreciating the mistake that had been made. The News Editor replied to Mr Bird’s solicitors by email of 13 June 2016, including a link to the See e.g., Barendt, “Balancing freedom of expression and the right to reputation: reflections on Reynolds and reportage” (2012) 63(1) NILQ 59-74, as well as, generally, Parkes et al, Gatley on Libel and Slander (13th ed; 2022) (“Gatley”), §16-020 and following. Section 4 of the (UK) Defamation Act 2013 (Publication on a matter of public interest) specifically recognises reportage (section 4(3)). Notably, section 4(3) applies only to statements providing “an accurate and impartial account of a dispute to which the claimant was a party”.

Tax Defaulters List, stating that “you will see the name William Bird, of 97 Henry Street, and the three companies associated with him in name and address” and setting out the extracts from the Tax Defaulters List relating to the three companies. That, of course, simply repeated the error made in the Article, a point made in reply by Mr Bird’s solicitors, who also explained that Mr Bird had no connection with the companies. Solicitors then entered the scene on behalf of Iconic. They disputed that the Article had the defamatory meanings asserted and expressed the view that it would have been understood to mean “that three companies associated with Mr Bird were in default and that he, on behalf of the companies, had negotiated settlements with the Revenue Commissioners”. Of course, even if that suggested meaning was plausible, Mr Bird was not, in fact, associated with the three companies. The solicitors offered to publish a “clarification/apology”, in terms which clearly implied that Mr Bird was connected with the three companies, albeit stating that the relevant tax defaults were corporate rather than personal. Unsurprisingly, that was not acceptable to Mr Bird. In the event, no apology or clarification was published by Iconic.3 Section 24(1) of the 2009 Act provides that a defendant may give evidence in mitigation of damage that he or she “(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner”. Such an apology is not to be treated as an admission of liability: section 24(3). Section 31(4)(d) of the Act then provides that, in making an award of general damages, the court (the jury, where the court is sitting with a jury) shall have regard to “the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement”. Iconic pleaded its offer of a clarification and/or apology in its Defence here and relied on it in closing. In response, it was suggested on Mr Bird’s behalf that the proposed clarification/apology compounded the original defamation and that, in the absence of a proper apology, the only way that Mr Bird’s reputation could be restored was by way of a substantial award of damages. The jury’s award suggests that that argument resonated with it. Given that Mr Bird had clearly been identified in error in the Article, it seems surprising that Iconic did not publish, or offer to publish, an appropriate apology to him.

9. On 28 June 2016, Mr Bird issued these proceedings, seeking, inter alia, damages for defamation. In his Statement of Claim, Mr Bird pleaded that the words meant that he was a tax defaulter, that he had engaged in fraudulent and/or criminal activity as well as various other defamatory meanings.

10. In its Defence, Iconic pleaded (amongst other defences) a defence of qualified privilege, in the following terms:

“… the words complained of were published on an occasion of qualified privilege, whether pursuant to section 18 of the Defamation Act 2009 and/or the common law and the provisions of the Constitution, as interpreted in light of the provisions of the European Convention on Human Rights Act 2003.”

In the particulars of that plea, Iconic pleaded that “[a]cting in good faith, the article was published as part of the Defendant’s lawful and legitimate duty to report on matters of concern and/or interest to the public at large, namely settlements made with the Revenue Commissioners”.

11. In his Reply, Mr Bird denied that the words complained of were published on an occasion of qualified privilege. He also pleaded malice.

12. The action came on for hearing before Owens J and a jury, commencing on 26 April 2023. On the third day of the hearing, after the evidence had concluded, Iconic applied to the Judge to withdraw the case from the jury on the basis that qualified privilege provided a full defence to the claim. That application was stated to be based on “statutory qualified privilege” rather than on any common law privilege.4 The application was opposed by Mr Bird, who argued that no defence of qualified privilege arose on the facts.

13. For the reasons set out in a detailed ex tempore ruling given by him, Owens J held there was no basis on which the defence of qualified privilege could go to the jury. He began by identifying the key issue as he saw it:

“Really the issue is in this particular matter is when can a journalist, in effect, rely - or a newspaper rely - in effect, on its own mistake to make material, which did clearly not come into existence on an occasion of qualified privilege into something on which they can claim qualified privilege?

The answer is that they can’t. The reason really I have come to that conclusion is as follows. The legal rules concerning qualified privilege, as I said, relate to, in my view, the occasion on which words are published” (Transcript of 28 April, pages 58-59).

14. In the Judge’s view, the publication was not on an occasion of qualified privilege: the communication of inaccurate information was outside the scope of any occasion of Iconic’s written submissions dated 27 April 2023, para 6. See also Transcript of 28 April 2023, page 15, line 21.

qualified privilege that might be said to exist because the Publisher had no duty or interest in communicating, and the public had no corresponding interest in receiving, such inaccurate information.

15. Owens J accordingly allowed the case to go to the jury, which found for Mr Bird. There was an issue as to identification but the jury was clearly satisfied that the Article referred to Mr Bird. The jury must also have been satisfied that the words complained of were defamatory of Mr Bird. It awarded damages of €75,000.5

16. The jury’s award triggered an immediate dispute about costs. It was – just – within the jurisdiction of the Circuit Court and, relying on section 17(2) of the Courts Act 1981 (as amended) (“Section 17(2)”) – which is set out later in this judgment – Iconic submitted that Mr Bird should be limited to Circuit Court costs. In response, Mr Bird submitted that Owens J should grant a special certificate enabling him to recover costs on the High Court scale (as Section 17(2) permitted), on the basis, firstly, that he had fallen a mere €1 short of a High Court award and, secondly, that his action involved an exceptional point of law – that relating to the scope of the qualified privilege defence. However, Owens J declined to grant such a certificate, stating that “the Act really places the risk of incorrect jurisdiction upon the person bringing the [action]” and that he “didn’t see anything terribly difficult” relating to Mr Bird’s action that The jury had asked for guidance on the range of financial awards it should consider when awarding damages, in response to which the Judge gave a direction based on this Court’s decision in Higgins v Irish Aviation Authority [2022] IESC 13, [2023] 1 IR 65. The jury’s award of €75,000 is toward the lower end of the second category or “bracket” identified by MacMenamin J in Higgins (which he emphasised were general categories) as applicable to the “medium” range of case, in which the “range” was from €50,000 to €125,000 (§158).

required it to be brought in the High Court (Transcript of 3 May 2023, pages 31-32). The Judge did, however, grant a certificate for one Senior Counsel.

APPEAL TO THE COURT OF APPEAL

17. Iconic appealed the Judge’s ruling on the qualified privilege defence to the Court of Appeal and Mr Bird, in turn, cross-appealed on the costs issue. Neither party appealed the amount of the jury’s award. In its Judgment of 20 March 2024, the Court of Appeal ([2024] IECA 62) dismissed the appeal and allowed the cross-appeal. O’ Moore J gave the sole judgment, with Noonan and Binchy JJ agreeing with it.

Iconic’s Appeal – Qualified Privilege

18. O’ Moore J began his analysis by expressing his agreement with Iconic’s submissions to the effect that the relevant occasion of qualified privilege was the publication in the Limerick Leader of the list of tax defaulters rather than the publication of that list by Revenue (as Owens J had considered to be the position). That is clearly correct: Mr Bird’s action was concerned with the publication of the Article in the Limerick Leader, rather than the publication of the Tax Defaulters’ List in Iris Oifigiúil. It was that publication, and not the publication in Iris Oifigiúil, that had to be defended. As O’ Moore J explained, “the fundamental question remains, which is whether or not the publication by the newspaper is an occasion of qualified privilege” (Judgment, §43). That is quite so and that is, in essence, the issue in this appeal also.

19. O’ Moore J then discussed a number of significant authorities on the common law defence of qualified privilege including Hynes-O’ Sullivan v O’ Driscoll [1988] IR

436 (“Hynes-O’ Sullivan”), Leech v Independent Newspapers [2007] IEHC 223 (“Leech”), and Kinsella v Kenmare Resources [2019] IECA 54, [2019] 2 IR 750 (“Kinsella”). In his view, those authorities established that the defence of qualified privilege required a mutuality of duty or interest which, in practice, confined the defence to situations involving individuals (or groups of individuals) rather than to the public at large (Judgment, §62). Section 18(2) of the 2009 Act did not dilute the common law requirement for mutuality of duty or interest (§64). In his view, the construction of section 18(2) advanced by the Applicant would completely reverse the “essentially individual nature” of qualified privilege and would involve a dramatic change which, if intended, one would have expected to see spelt out in the clearest of terms. The words of section 18(2) could not, in his view, bear a meaning which would involve “an enormous expansion” in the scope of the qualified privilege defence at the expense of the rights of the individual (Judgment, §§65-67).

20. That conclusion was, in O’ Moore J’s view, supported by consideration of the 2009 Act as a whole. He considered that Iconic’s construction of section 18(2) would give rise to a fundamental inconsistency with section 18(3) which provides for a defence of qualified privilege for (inter alia) a fair and accurate report or summary of any notice or other document issued for the information of the public by or on behalf of a Government Department. In O’ Moore J’s view, the Tax Defaulters List was such a notice or document but the section 18(3) defence was not available to Iconic in circumstances where the Article was not fair and accurate. O’ Moore J considered that it would be “an extraordinary result” to allow Iconic to rely on the defence under section 18(2) in such circumstances (§§72-73). Finally, O’ Moore J had regard to the fact that the construction of section 18(2) advanced by the Publisher would, if accepted, render the defence provided by section 26 of the 2009 Act (fair and reasonable publication on a matter of public interest) “entirely redundant” (Judgment, §79).

21. The Court of Appeal accordingly dismissed Iconic’s appeal.

Mr Bird’s Cross-Appeal – Costs

22. As to the cross-appeal on costs, O’ Moore J considered that the High Court Judge had failed to give appropriate consideration to “the primary submission of Mr. Bird”: namely that the difference between the award made by the jury and the award which would have entitled Mr Bird to High Court costs was “gossamer thin”. He also considered that the Judge had not appropriately considered the exceptional nature of the qualified privilege issue and had understated its complexities and difficulties and the potentially “far-reaching” consequences if the defence had succeeded. A proper consideration of those two matters led to the conclusion that Mr Bird should be awarded costs on the High Court scale (Judgment, §§86 & 91-92).

23. Mr Bird’s cross-appeal was therefore allowed and the costs order made by the High Court was varied accordingly.

APPLICATION FOR LEAVE AND DETERMINATION

24. On 2 May 2024, Iconic applied for leave to appeal to this Court. The application was opposed by Mr Bird but, for the reasons set out in its Determination of 9 July 2024 ([2024] IESCDET 85), the Panel granted leave to appeal. It considered that the nature and scope of the defence under section 18(2) of the 2009 Act, and its relationship to the defences under section 18(3) and section 26 of the 2009 Act, gave rise to issues of general public importance. The Panel further considered that the costs issue was so closely connected to the substantive issues that leave ought to also be granted on that issue.

APPEAL TO THIS COURT

25. The parties filed detailed written submissions and the Court also had the benefit of Counsel’s helpful oral submissions. Before addressing those submissions, however, I shall set out the relevant provisions of the 2009 Act and then discuss the defence of qualified privilege in the broader context of defamation law.

THE 2009 ACT

26. The 2009 Act is a significant piece of legislation and a number of its provisions are relevant to the resolution of this appeal.

27. Its Long Title states that it is an Act “to revise in part the law of defamation; to repeal the Defamation Act 1961; and to provide for matters connected therewith”. Section 6(1) of the Act provides that the torts of libel and slander are henceforth to be collectively described as the tort of defamation. The tort of defamation consists of the publication by any means of a “defamatory statement” (as defined) (section 6(2)) and is actionable without proof of special damage (section 6(3)), thus sweeping away the special rules applicable to the former tort of slander.

28. Part 3 of the 2009 Act deals with defences. Section 15 of the 2009 Act provides that, subject to sections 17(1) and 18(1), any defence (other than a defence under statute or any act of the institutions of the EU or any regulations made for the purpose of giving effect to such an act) that, immediately before the commencement of Part 3, could have been pleaded as a defence in an action for libel or slander is abolished. In other words, subject to sections 17(1) (absolute privilege) and 18(1) (qualified privilege) all previous common law defences are abolished by the 2009 Act. Section 16 of the 2009 Act provides for a new statutory defence of truth (which replaces the common law justification defence). Section 17 provides for a defence of absolute privilege (while preserving the pre-existing common law defence: section 17(1)). Section 18 (“Qualified privilege”) then provides:

“18 (1) Subject to section 17 , it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law (other than the Act of 1961) in force immediately before such commencement as having been made on an occasion of qualified privilege.

(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the

said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.

(3) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is—

(a) a statement to which Part 1 of Schedule 1 applies,

(b) contained in a report, copy, extract or summary referred to in that Part, or

(c) contained in a determination referred to in that Part.

(4) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is contained in a report, copy or summary referred to in Part

2 of Schedule 1, unless it is proved that the defendant was requested by the plaintiff to publish in the same medium of communication in which he or she published the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all of the circumstances.

(5) Nothing in subsection (3) shall be construed as—

(a) protecting the publication of any statement the publication of which is prohibited by law, or of any statement that is not of public concern and the publication of which is not for the public benefit, or

(b) limiting or abridging any privilege subsisting apart from subsection (3).

(6) A defence under this section shall be known, and is referred to in this Act, as the ‘defence of qualified privilege’.

(7) In this section—

‘duty’ means a legal, moral or social duty;

‘interest’ means a legal, moral or social interest.”

29. Section 19 of the 2009 Act provides that the defence of qualified privilege “shall fail” if the plaintiff “proves” that the defendant “acted with malice” in relation to the contested statement. That applies to all aspects of the section 18 defence though, as the authors of Cox and McCullough, Defamation Law and Practice (2nd ed; 2022) (“Cox and McCullough”) observe, malice is unlikely to be a factor in a defence under section 18(3): §8-142. Malice is not defined in the 2009 Act and so its meaning must be found in the common law authorities. Reference is made to some of those authorities later in this judgment.

30. Schedule 1, Part 1 of the 2009 Act lists 19 categories of statement which are “privileged without explanation or contradiction”. These include:

“12. A fair and accurate report or copy or summary of any notice or other document issued for the information of the public by or on behalf of any Department of State for which a Minister of the Government is responsible …”

31. The parties agree that the Tax Defaulters List is a “notice or other document issued for the information of the public by or on behalf of any Department of State for which a Minister of the Government is responsible”. That being so, it follows that a “fair and accurate report or copy or summary” of the List would come within the scope of the section 18(3) defence (subject to section 18(5) (public concern/public benefit) and section 19 (malice)). That would be so even if the List itself was inaccurate – for instance if Revenue had mistakenly identified a compliant taxpayer as a defaulter. Provided only that the report is a “fair and accurate” report of what is stated in the List, the publisher does not have to concern itself with the accuracy of the List. Here, however, it is common case that the Article, insofar as it related to Mr Bird, was not “fair and accurate” and so no defence under section 18(3) was available to Iconic and it did not assert any such defence at any stage.6

32. Schedule 1, Part 1 also includes (at para 19) “[a]ny statement published by a person in accordance with a requirement under an Act of the Oireachtas whether or not that person is the author of the statement”. Given the terms of Section 1086 TCA (and section 1086A), this provision clearly applies to the publication of the Tax Defaulters List in Iris Oifigiúil: as already noted such publication is a statutory requirement. Thus, in the event that the Tax Defaulters List had mistakenly identified Mr Bird as a tax defaulter, section 18(3) would have provided a defence to Revenue against any claim in defamation brought against it by Mr Bird (subject again to section 18(5) and section 19).

33. The Act goes on to provide for certain other defences, including that of “honest opinion” (section 20) (replacing the common law defence of fair comment), consent to publish (section 25) and, of more significance here, the defence of “fair and reasonable publication on a matter of public interest” provided by section 26. That defence requires the defendant to prove that:

As to what is imported by the requirements of fairness and accuracy, see Cox and McCullough, §7-108 and following. As the authors explain, minor or peripheral inaccuracies will not lead to a loss of privilege but any significant inaccuracy will have that effect: §7-111. On any view, the inaccuracy here was significant and it is unsurprising that Iconic never sought to rely on a section 18(3) defence.

“(a) the statement in respect of which the action was brought was published —

(i) in good faith, and

(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,

(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and

(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.”

34. In determining whether it was “fair and reasonable” to publish the statement concerned, section 26(2) requires the court (which, where the court is sitting with a jury, means the jury) to “take into account such matters as the court considers relevant” including “any or all” of the matters set out in section 26(2)(a) – (j), including, at (a), “the extent to which the statement concerned refers to the performance by the person of his or her public functions” and, at (j), “the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.”

35. Iconic accepts that no defence under section 26 was available to it here because it could not satisfy the requirements of section 26(1)(c), namely that “in all of the circumstances of the case, it was fair and reasonable to publish the statement”.7

36. The core question presented by this appeal is whether section 18(2) of the 2009 Act, properly construed, applies to publications such as the publication at issue here, a publication to the world at large which is said to have been on an issue of legitimate public interest, namely that of “tax compliance”. That is a question of statutory interpretation. As I understand Iconic’s position, it accepts that no common law defence of qualified privilege is available in the circumstances here and does not contend that it is open to the Court to develop the common law so as to provide such a defence. Indeed, on their case, section 18(1) of the 2009 Act effectively freezes the common law of qualified privilege as it was at the commencement of the 2009 Act. Neither is the Court being asked to develop some entirely new defence, whether by reference to the provisions of the Constitution or the European Convention on Human Rights (“ECHR”). The issue in the appeal is whether section 18(2) of the 2009 Act provides a defence in the circumstances here.

37. The proper approach to the interpretation of section 18(2) is set out in Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 (“Heather Hill”) as well as A, B and C (a minor) v Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335. In Heather Hill, Murray J (speaking for the Court) explained that the modern authorities make it clear that, with or without the Iconic’s reply to question 4 in the Statement of Case.

intervention of section 5 of the Interpretation Act 2005, “in no case can the process of ascertaining the ‘legislative intent’ or the ‘will of the Oireachtas’ be reduced to the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of a statute as a whole or the context in which, and purpose for which, it was enacted” (§109). Similarly, in A, B and C (a minor) v Minister for Foreign Affairs, Murray J observed that, while the starting point in the construction of a statute is the language used in the relevant statutory provision, “the words used … must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute” (§73).

38. Iconic effectively invites the Court to consider section 18(2) in isolation, without regard to either section 18(3) and/or section 26. That is not a permissible approach. Section 18(2) must be interpreted in light of the 2009 Act as a whole. The context in which the 2009 Act was enacted is also relevant. That context includes the state of the law prior to its enactment (Heather Hill §111, citing People (DPP) v AC [2021] IESC 74, [2022] 2 IR 49). It also includes the provisions of the Constitution, which commits the State “by its laws [to] protect as best it may from unjust attack and, in the case of injustice done, vindicate … the good name … of every citizen” (Article 40.3.2°)8 but In McDonagh v Sunday Newspapers [2017] IESC 59, O’ Donnell J (as he then was), noted that the Constitution imposes on the State a “specific obligation” to protect and vindicate the good name of the citizen, reflecting a value judgment which he traced back to the Brehon laws but which, he explained, was not “a merely historical which also guarantees the right of citizens “to express freely their convictions and opinions” (subject to “public order and morality”) and, in that context, expressly acknowledges the “rightful liberty of expression” of the media (Article 40.6.1°.i) and which also protects the right to communicate as an implied or derived right under Article 40.3.9 The law of defamation, now largely contained in the 2009 Act, may be seen as an attempt to balance these “competing values”.10 idiosyncrasy” but was rather something which most civilised systems of justice seek to achieve: §§38-39. As O’ Donnell J noted, the importance of the right to reputation has also been emphasised by the ECtHR: see the discussion in Cox and McCullough, at §1-49 and following. See Attorney General v Paperlink Ltd [1984] ILRM 373 and this Court’s decision in Murphy v Independent Radio and Television Commission [1999] 1 IR 12 (“Murphy”). The right of free expression guaranteed by Article

40.6.1 is “concerned with the public activities of the citizen in a democratic society” and is not limited to the expression of opinions but also includes the right to communicate “the facts on which those opinions are based”: per Barrington J in Murphy (giving the judgment of the Court) at 24-25. It would seem to follow that there is something of an overlap between the right of free expression and the right to communicate (ibid). See also Barrington J’s judgment in Irish Times v Ireland [1998] 1 IR 359. McDonagh v Sunday Newspapers Ltd [2017] IESC 46, [2018] 2 IR 1 per McKechnie J at §§102-104 and per Charleton J at §§171-173.

DEFAMATION LAW AND THE DEFENCE OF QUALIFIED PRIVILEGE

Truth and Honest Opinion

39. Liability for the publication of a defamatory statement is strict: an intention to defame does not need to be established and the tort may be committed even though the defendant did not intend to refer to the plaintiff. However, liability is not absolute: defamation law provides for a number of different defences. A defendant sued in respect of a defamatory statement of fact will have a complete defence if they establish the truth of the statement: Cox and McCullough, §5-01. That defence is now provided for in section 16 of the 2009 Act. As the authors explain, the law has long taken the view that “[a] defamatory allegation, if it is true, cannot lower the reputation that someone should have, because that reputation should incorporate public knowledge of that which is true” (original emphasis) (§5-01).11 They also suggest that the right to freedom of expression gives a right to tell the truth about other persons (provided that it does not impact unjustly on their private life) (ibid).12 In any event, whatever the Truth has not always been considered to be a complete defence in this context, certainly not as regards criminal libel. Truth was not, in itself, a defence to a charge of defamatory or seditious libel, the defendant being bound to establish that publication was for the public benefit: see the discussion in the Law Reform Commission’s Consultation Paper on The Crime of Libel (1991), at 45-46 and 61. That was reflected in section 6 of the Defamation Act 1961 (“the 1961 Act”) which essentially re-enacted section 6 of the Libel Act 1843 (Lord Campbell’s Libel Act). Section 35 of the 2009 Act abolished the common law offences of defamatory libel, seditious libel and obscene libel. Gatley suggests that, as regards civil actions for defamation, the question as to “[w]hether truth should be a defence in all circumstances has long been controversial”: §12-001. See also the observations made by Charleton J regarding privacy in McDonagh, §171. No claim for breach of privacy is made here.

position as regards the law of privacy, it is now well settled that truth is a complete defence to a defamation action. However, truth can be a difficult (and expensive) defence to establish and its unsuccessful invocation may have adverse consequences for the defendant: section 32(1) of the 2009 Act.

40. The law also provides a defence for defamatory statements of opinion, formerly by way of the common law defence of fair comment and now by means of the statutory defence of honest opinion created by section 20 of the 2009 Act. The “defining feature” of that defence “is that there is no need to prove the objective truth, accuracy or even reasonableness of the opinion” (Cox and McCullough, §6-02). The defence is, nonetheless, bounded in a number of significant ways, as Cox and McCullough explains, not least by the requirement to establish that the opinion was based on true facts13 (ibid, §6-50 and following) and that it related to a matter of public interest (§6-

95 and following). The defence “is a highly complicated and constrained one” and at trial a defendant may discover that “s/he may not be able to rely on the defence because s/he has not crossed some of the various hurdles that operate as preconditions to its application” (§6-04). Again, there may be adverse consequences for a defendant who fails in a defence of honest opinion in terms of an award of aggravated damages pursuant to section 32 of the 2009 Act.

Or, subject to certain conditions, based on allegations of fact to which a defence of absolute or qualified privilege would apply if a defamation action were brought in respect of such allegations: section 20(2)(b)(ii) and (3)(b).

Privilege

41. The law also recognises “that there are occasions on which ‘the common convenience and welfare of society’ or the [sic] ‘the general interest of society’ require that false and defamatory statements of fact should be protected. In such cases, it is recognised that the public interest in ensuring freedom of communication outweighs the competing public interest in protecting the reputation of the individual”: Rampton et al, Duncan and Neill on Defamation and other media and communications claims (5th ed; 2020) (“Duncan and Neill”), §17.01.

Absolute Privilege

42. As Duncan and Neill explains, in some instances the protection so conferred is absolute, thereby affording “a complete immunity from liability” (§17.02). Thus, the law has long recognised the need for absolute privilege in respect of parliamentary proceedings. Such privilege is now expressly conferred by the Constitution itself (Article 15.10, 15.12 & 15.13) but can be traced through the Free State Constitution (Articles 18, 19 and 20) back to Article 9 of the Bill of Rights 1688.14 While the precise As Dabhoiwala, What is Free Speech? The History of a Dangerous Idea (2025) explains, the traditional freedom of speech and debate of members of Parliament had previously been only a privilege, granted by monarchs “who had not scrupled to punish members whose speech displeased them”. The upgrading of that privilege to a constitutional entitlement reflected the enhanced status of Parliament as the chief arena of public debate in the late 17th century. Even so, Dabhoiwala states, the new concept of a right to free parliamentary debate remained predicated on the ideal that rulers deserved honest counsel from their advisors and “not at all on the idea that every citizen had a right to address the public”: page 42.

meaning and scope of Article 15.10, 15.12 & 15.13 has been the subject of dispute – see for instance this Court’s decisions in Callely v Moylan [2014] IESC 26, [2014] 4 IR 112, Kerins v McGuinness [2019] IESC 11, [2020] 1 IR 1 (Kerins No 1); [2019] IESC 42, [2019] 2 ILRM 361) (Kerins No 2) and [2024] IESC 24 (Kerins No 3), as well as O’ Brien v Clerk of Dáil Éireann [2019] IESC 12, [2020] 1 IR 90 – there appears to be no doubt that members of the Oireachtas are absolutely immune from any liability in defamation for statements made in either House (or before a committee of the Houses or either of them). The rationale for affording such absolute protection to parliamentary speech is evident: even the threat of litigation would inevitably have a restrictive (or “chilling”) effect on free speech in the Oireachtas and the conduct by it of its legitimate – and essential – constitutional business: O’ Brien v Clerk of Dáil Éireann, §62. As Murray J explained in Kerins (No 3) (§8) Articles 15.10, 15.12 and

15.13 are “designed to ensure freedom of debate and the free exercise of the other constitutional roles of the legislature such as holding the government to account and providing representation for the people on matters of genuine public interest. These are, on any version, critical values that are central to the independence, autonomy and authority of parliament: it is, as Denham J. put it in Attorney General v. Hamilton (No.2) [1993] 3 IR 227 at p. 298 ‘a cornerstone of democracy that members of the Oireachtas have free speech in the legislature’”. Anything less than absolute privilege, such as would leave members exposed to the risk of being sued – whether or not successfully – in respect of statements made in the Oireachtas on the basis of their subjective motivation would not sufficiently protect “free speech in the legislature”.15

43. Similarly, it has long been recognised that absolute privilege applies to judicial proceedings. Cox and McCullough explains the rationale for this privilege as follows: “in order for justice to be done properly, it is important that all parties — judges, lawyers, parties and witnesses — can be assured that they can speak freely without having to worry about whether or not their comments will come back to haunt them in subsequent proceedings” (§7-50). While that privilege comes at a price (as all privileges do) it has been said that it “is of far less importance that occasional mischief should be done by slander … than that the whole course of justice should be enfeebled and impeded” (per Pigot CB in Kennedy v Hilliard (1859) 10 Ir CLR 195, at page 209). Absent such a privilege “no judge could go out on the bench and feel that he or she could render a judgment or render a judgment without risk of suit. Similarly, witnesses would be inhibited in the way they could give evidence” (Looney v Bank of Ireland (Unreported, Supreme Court, 9 May 1997) per O’ Flaherty J, at page 3).16 However, the absolute privilege enjoyed by members in respect of utterances in the Oireachtas does not mean that “the constitutional rights of citizens … disappear inside the gates of Leinster House”. Rather, “it is for the Oireachtas itself to protect those constitutional rights in respect of that which occurs within the Houses. It follows that the role of protecting the rights of citizens for actions within the Houses is a constitutional role of those Houses, and one, therefore, which the Houses are bound by the Constitution to fulfil”: O’ Brien, §87. The various judgments given in this Court in Looney do suggest that “there is possibly some bound to the so called absolute privilege of the witness in a case of flagrant abuse” (per Barrington J at page 1). However, as Cox and McCullough observes (at §7-75) any suggestion that an action in defamation might lie against a party or a witness in any circumstance would appear to be in conflict with the absolute nature of the privilege as firmly established at common law: see also Gatley, §14-005 and following. Courts are, of course, empowered to take steps to prevent the misuse of their processes by a party or a witness for the purpose of making unsubstantiated

44. This form of privilege is essentially functional in character. It is less concerned with the protection of expressive speech than with ensuring the free communication necessary to ensure the effective functioning of the legislature and of the courts, objectives of sufficient public importance as to justify the complete exclusion of a remedy in defamation to those who may be incidentally defamed by statements made in the course of parliamentary or judicial proceedings. Section 17(2) of the 2009 Act gives statutory form to these long-established privileges. It also extends absolute privilege to many other categories of statement, including statements made in proceedings involving the exercise of limited functions and powers of a judicial nature (subsection (2)(h)); proceedings before a tribunal of inquiry (provided that the statement “is connected with those proceedings”), as well as statements made in any report of such a tribunal (subsection (2)(n) & (o)); proceedings before a commission of investigation (provided that the statement “is connected with those proceedings”), as well as statements made in any report of such a commission, (subsection (2)(p) & (q)) and proceedings made in the course of a coroner’s inquest or contained in a

decision made or verdict given at such an inquest (subsection (2)(r)). These categories all relate to statements made in particular forms of proceedings and/or in reports issued by the bodies conducting such proceedings.

and/or malicious allegations against others: see, for example, the observations of Dunne J in Keaney v Sullivan and Ors [2015] IESC 75, page 20. In any event, the combined effect of section 17(2)(e), (f) and (g) of the 2009 Act is to confer absolute protection in respect of statements made in the course of court proceedings, including statements made by a party or witness, for the purposes of defamation actions. That does not necessarily preclude other forms of action in respect of statements made in the course of court proceedings: Jeffrey v Minister for Justice, Equality and Defence [2019] IESC 27, [2022] 2 IR 635.

45. As regards the reputational interests of persons that may be subject to criticism in the course of the proceedings of such bodies, the Oireachtas presumably has taken the view that such bodies will act fairly and will have rules and procedures intended to minimise the risk of such proceedings being misused or abused (as to which, see for example this Court’s decision in O’ Brien, as well as the discussion above regarding court procedures). Ultimately, however, the risk that an individual will not be able to vindicate their constitutional right to their good name is outweighed by the public interest in ensuring freedom of speech in proceedings before such bodies and in ensuring that such bodies are free to communicate their findings without fear of being sued for defamation.

46. Section 17(2)(i), (j) & (k) of the 2009 Act are in a somewhat different category. They refer to reports rather than proceedings: “fair and accurate” reports of proceedings publicly heard before any court established in the State or Northern Ireland or of any

decision made public by such a court (section 17(2)(i)), “fair and accurate” reports of certain in camera proceedings heard in the State (section 17(2)(j)) and “fair and accurate” reports of proceedings publicly heard before (and the public decisions of) the Court of Justice of the European Union, the European Court of Human Rights and the International Court of Justice (section 17(2)(k)). The rationale for these categories of privilege is clearly the interest of the public in being informed of proceedings in courts affecting or potentially affecting affairs in the State and/or otherwise impacting on its citizens.

That is particularly true of proceedings heard in the courts established under the Constitution, having regard to the provisions of Article 34 of the Constitution: Irish Times v Ireland [1998] 1 IR 359.17 While the privilege arising from these provisions is “absolute” in the sense that it is not defeasible by a showing of malice, it is nonetheless subject to a significant limitation insofar as it applies only to “fair and accurate” reports.18 Thus, the protection afforded to statements made in the “As justice is required to be administered in public on behalf of all the inhabitants of the State, such inhabitants are entitled to be informed of the proceedings in the court and to be given a fair and accurate account of such proceedings and the media are entitled to give such an account to the wider public.

The public nature of the administration of justice and the right of the wider public to be informed by the media of what is taking place are matters of the greatest importance” (per Hamilton CJ at 383). See also per O’ Flaherty J at 396 (the press is entitled to report, and the public entitled to know, “that the administration of justice is being conducted fairly and properly”); per Denham J (as she then was) at 398 (it is “a fundamental right in a democratic State for the people to have access to the courts to hear and see justice being done, save in a few limited exceptions.

This right helps sustain democracy”); per Barrington J at 401 (“[t]he press is in effect the eyes and the ears of the public. It is an important protection to accused persons that their case be heard in public. It is also important to the citizens in general that anything eccentric, unusual, or apparently unfair which happens in the courts should be drawn to their attention. It is also important to all engaged in the administration of justice that justice should not only be done but should be seen to be done”) and per Keane J (as he then was) at 409 (“[j]ustice must be administered in public, not in order to satisfy the merely prurient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing.

Such a society could not tolerate the huge void that would be left if the public had to rely on what might be seen or heard by casual observers, rather than on a detailed daily commentary by press, radio and television. The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy”). It is, of course, an unfortunate fact that “detailed daily commentary by press, radio and television” on court proceedings is largely a thing of the past. Section 18(1) of the 1961 Act (repealed by the 2009 Act) also had a requirement for “fair and accurate” reporting.

It was also limited to contemporaneous publication or broadcasting of reports of court proceedings, but that limitation is not maintained in section 17(2). As to what is imported by the requirements of fairness and accuracy in this context, see Cox and McCullough, §7-108 and following. As the authors observe, the section 17(2)(i), (j) and (k) defences are something of a hybrid, having elements of both absolute and qualified privilege (§§7-117 - 7-119). That is undoubtedly so and indeed reports of other court proceedings are afforded qualified privilege under section 18(3) of the 2009 Act (again, subject to being “fair and accurate”).

Prior to the enactment of section 18(1) of the 1961 Act, section 3 of the Law of Libel Amendment Act 1888 provided for a statutory privilege for reports by newspapers of public proceedings in court, subject again to the report being “fair and accurate” and published contemporaneously.

course of judicial proceedings encompasses inaccurate, unfair and indeed perjurious statements and reports of such statements will also be protected provided that the reporting is fair and accurate. If not, no privilege, absolute or qualified, will attach to it.19 Qualified Privilege

47. Qualified privilege is also rooted in public policy but here the public interest in freedom of speech and communication is not so weighty as to justify or require absolute protection. A frequently-cited statement of the rationale and scope of qualified privilege (one that has been cited with approval on many occasions in this jurisdiction) is that of Parke B in Toogood v Spyring 149 ER 1044, (1834) 1 CM & R

181 (at 193):

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the wellknown limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in In its Report on Privilege for Reports of Court Proceedings under the Defamation Act 2009 (LRC 121 - 2019) the Law Reform Commission considered whether reporting of court proceedings falling below the “fair and accurate” standard should nonetheless be protected by qualified privilege. The Commission considered that the arguments against the introduction of such a defence far outweighed the arguments in favour. In its view, removing the requirement for a “fair and accurate” report would not appropriately balance the competing constitutional right to a good name and the right to freedom of expression and such a defence would constitute a disproportionate restriction on the right to a good name (§3.30 & §3.33).

matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

48. Another oft-repeated statement is that made by Willes J in Henwood v Harrison [1872] LR 7 CP 606 (at 622):

“The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals”.

49. Some of the authorities speak of “duty” and others of “interest” but either duty or interest will suffice. Thus, as Cox and McCullough explains, qualified privilege will generally arise (at common law, but also under section 18(2) of the 2009 Act) “where the publisher has a legal, social or moral duty or interest in publishing the offending material and the recipient has a reciprocal duty or interest in receiving it” (§8-08; my emphasis). Such reciprocity is “essential”: Adam v Ward [1917] AC 309 (per Lord Atkinson, at 334).20 Even so, as Cox and McCullough states, that “is a broad and comparatively non-prescriptive formula” capable of being applied to novel situations and the law reports illustrate the wide variety of circumstances in which the privilege has been held to be capable of application (§8-08). Thus “privileged occasions may range from purely private communications, such as an employment reference or a response to an inquiry as to credit, through communications to a more substantial, but still essentially restricted audience, such as statements made in a company circular to shareholders or at a meeting of a local authority committee, to communications to the world at large, such as fair and accurate reports of statements made in Parliament or a reply to a public attack”: Duncan and Neill, §17.06.

50. This appeal is, of course, concerned with “communications to the world at large”. But, as the Court of Appeal correctly observed in Kinsella, it is only in “exceptional circumstances” that the common law has been prepared to recognise that publications to “the world at large” may be protected by qualified privilege (§107).21 Before addressing the exceptions further, something more needs to be said about the general rule.

This passage from the speech of Lord Atkinson warrants extended quotation: “[i]t was not disputed … that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. Nor is it disputed that a privileged communication — a phrase often used loosely to describe a privileged occasion, and vice versa — is a communication made upon an occasion which rebuts the prima facie presumption of malice arising from a false and defamatory statement prejudicial to the character of the plaintiff, and puts the latter on proof that there was malice in fact”. See also Gatley, §15-001: “A privilege for publication to the world at large was, in English law, the exception rather than the rule, even if the subject-matter was politics or public affairs”.

51. As Gatley explains, for a long time cases of qualified privilege “primarily concerned communications of a ‘private’ nature, commonly arising out of the necessities of some existing relationship between the maker of the statement and the recipient” of it (§15- 001). Cox and McCullough makes the same point, stating that “[a]t the heart of the common law defence is the requirement of a relationship between parties that would ground the need for the communications in question and would mean that there was a reciprocity of duties and interests as between publisher and publishee connected to the publication of the statement” (§8-17). To the same effect is the judgment of McCarthy J in Hynes-O’ Sullivan in which he said that the “defence of qualified privilege is founded upon the needs of the common good whether in the home, the factory, the shop, the houses of finance, or voluntary associations with professional or other purposes”. The common good, he stressed, “presupposes a common factor, a reciprocal duty or interest in making and receiving the communications” (453). Over time, other forms of interaction and communication have been recognised as capable of attracting qualified privilege, including communications not made in the context of any prior relationship (such as the giving of a reference, responding to a credit inquiry or making a complaint to a regulatory or supervisory body or to the police as to the alleged commission of a crime). However, the fundamental requirement for reciprocity of duty and/or interest meant that the scope of circulation of communications capable of attracting privilege was effectively self-limiting and any excessive and unnecessary publication was not protected (Gatley, §15-067 and following).

52. Although, in Henwood v Harrison, Willes J referred to the “public convenience” being preferred to “private interests”, the rationale for the conventional form of qualified privilege defence is not related to any issue of communication to the public or to public expression. Indeed, it is principally concerned with functional/socially useful communication rather than expressive communication.22 Thus, as Cox and McCullough explains, the public policy underpinning the defence as a whole “was premised on the proposition that it was important that people should be free to speak on occasions when it was their duty to do so, or where this was necessary in the protection of some interest that was shared by the recipient” (§8-17). In the words of Lord Nicholls in Reynolds v Times Newspapers [2001] 2 AC 127 (“Reynolds”), the “essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end” (at 195; my emphasis). It may of course be said that the source can have no duty to make, or legitimate interest in making, and that the recipient has no duty to receive or legitimate interest in receiving, any false or defamatory statement. That may be true as far as it goes. Yet the public interest (“the common convenience and welfare of society”) is nevertheless advanced by ensuring free and frank communication where that is necessary to advance a recognised duty or protect a recognised interest (if “fairly warranted by any reasonable occasion or exigency”) even at the risk of a defamatory statement being made, provided that the statement is made without malice (“honestly made”): if such statements were not A point made by the Supreme Court of Canada in Grant v Torstar Corporation [2009] 3 SCR 640, §94.

protected, the necessary free and frank communication would be deterred and the protection of the duty/interest at issue would be undermined. The risk of error – provided that it is honest error – has to be accepted as the price of free communication. That is the trade-off at the core of the defence.

53. That trade-off is, in constitutional terms, a delicate and sensitive one, as is illustrated by this Court’s decision in Hynes-O’ Sullivan. There the defendant (a solicitor) had sent a complaint about the plaintiff (a consultant psychiatrist) to (inter alia) the Irish Medical Association (IMA). The IMA was a representative body for doctors and had no function in relation to such complaints (the relevant body was (and still is) the Medical Council). Nonetheless, the defendant contended that the letter was written on an occasion of qualified privilege on the basis that he had honestly (albeit mistakenly) believed the IMA to be the relevant body. The High Court held that the defence of qualified privilege applied in those circumstances. On appeal, however, this Court unanimously reversed that decision, holding that the defendant’s mere honest belief that the IMA had an interest or duty in receiving his complaint could not render the occasion privileged and that, even if an honest and reasonable belief could provide a basis for a defence of qualified privilege, the defendant’s belief had not been reasonable.

54. In his judgment in Hynes-O’Sullivan (with which Griffin J agreed), Finlay CJ rested his analysis on the common law authorities. However, both Henchy J (with whom Hederman J agreed) and McCarthy J explicitly invoked the Constitution. According to Henchy J, “if a right to defame with impunity is recognised on such a purely subjective basis” (i.e. based solely on the honest but mistaken belief of the publisher that the recipient had a duty or interest in receiving it), the guarantee in Article 40.3 would not be effectuated. He continued:

“An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Article 40, s 6, sub-s 1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication” (at 449).

55. As for the submission that the defence of qualified privilege arose if the defendant honestly and reasonably (but mistakenly) believed that the recipient had a duty or interest, Henchy J characterised that as a “suggested radical change in the hitherto accepted law” which should more properly be effected by statute and that was, in his opinion, “particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name”. The articulation of public policy on such a matter was, he considered, “primarily a matter for the legislature” (at 450).

56. In his judgment, McCarthy J appeared to go somewhat further. Recognising a qualified privilege based on honest and reasonable belief would, he suggested, suffer from “one fatal defect” in that it would overlook the position of the defamed party. The defamed party had a constitutional right to their good name, a right which co-existed with the free expression rights guaranteed by Article 40.6.1. The defence of qualified privilege was “itself an impairment in the interests of the common good of the right to vindication of one’s good name”. While that did not mean that it should be “sparingly allowed”, its existence should be clear and should not be dependent on a circumstance

– the honest and reasonable belief of the publisher – which the victim of a defamatory statement had no means of examining or testing unless and until he goes to court. Any “immunity” should be seen and determined “objectively” and in his view it followed that it was contrary to principle that a defence of qualified privilege could be supported by a belief which was mistaken, however honest and reasonable (at 454).

57. Section 18(2) of the 2009 Act has since expanded the defence of qualified privilege so as to encompass the publication of a statement to a person or persons who the publisher “believed upon reasonable grounds” had a duty to receive or an interest in receiving the statement. To that extent, the Oireachtas has clearly decided to modify the position declared in Hynes-O’ Sullivan. However, the Court’s underlying analysis remains intact: the defence of qualified privilege is, in principle, significantly bounded by the constitutional guarantee to protect and vindicate the good name of the citizen.

58. That is not to say that qualified privilege may not apply to statements given a wide circulation. Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003] 1 WLR 1357 (“Kearns”) is an example of a defamatory statement being held to be protected by qualified privilege notwithstanding that it was circulated to some 10,000 members of the Bar.23 Even so, “[t]he fundamental principle was that a statement was protected by privilege only if the publication of it was to persons who had a proper interest or duty in the matter with which it was concerned, and the public as a whole was not generally regarded as having a relevant interest or duty” (Gatley, §15-001).

59. In Kearns, the General Council of the Bar wrote to its 10,000 members mistakenly advising them that the claimants (who held themselves out as solicitors and who had been instructing counsel) were not solicitors and had no entitlement to instruct counsel. The claimants sued for defamation. The High Court entered summary judgment for the defendant on the basis that the claimants had no reasonable prospect of overcoming the defence of qualified privilege. On appeal, the Court of Appeal affirmed that order. Giving the principal judgment, Simon Brown LJ rejected the claimants’ contention that different approaches applied to common interest and dutyinterest cases, with the former category attracting privilege on a more generous basis; rather, the relevant distinction was between cases where the communication takes place within an existing and established relationship and those where there was no such relationship and the communication was between strangers, or was volunteered In this jurisdiction Ryanair DAC v Van Zwol [2020] IECA 105 is a case in which large-scale communication (to more than 2,000 persons) was held to be protected by qualified privilege on conventional reciprocal interest grounds.

otherwise than by reference to a relationship (§30). Privilege attached more readily to the former category because, of their nature, such relationships involve reciprocal interests and/or duties (ibid). The relationship between the Bar Council and its members was an established one which plainly required “the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council’s functions” (§39).

60. Simon Brown LJ went on to observe that, if the case had involved “a media publication”, there could be “no question” of qualified privilege attaching (because the Bar Council had not taken any or any sufficient steps to verify the position before communicating to its members in the terms it did) but, he stated, the law with regard to non-media publications was “different”. The media publisher had “above all to act responsibly” (§42). Simon Brown LJ’s reference to the duty (of the media publisher) to “act responsibly” clearly derived from Reynolds and Loutchansky v Times Newspaper Ltd (Nos 2-5) [2002] EWCA Civ 1805, [2002] QB 73, which were considered earlier in his judgment. In his short concurring judgment, Keene LJ agreed that, where a statement is made within an existing relationship then, so long as the statement is “fairly warranted by the occasion” and made without malice, it will be protected by qualified privilege, irrespective of the degree of investigation or verification carried out by the maker of the statement and irrespective of whether one categorised the situation as one of common interest or of duty and corresponding interest. The need to act responsibly will not arise in such circumstances (§45). Notwithstanding that the publication was to a large number of persons, each of them enjoyed a clearly identifiable relationship with the Bar Council and so the position could not be equated with that in Reynolds, which was “dealing with a publication made to all the world, with the result that no pre-existing relationship was required in order to receive the communication” (§46).

61. Here, of course, we are concerned with a “media publication” and a “communication to the world at large” and the argument made by Iconic is effectively the obverse of the argument made by the claimant in Kearns. In Kearns, the claimants argued that the issue of qualified privilege should be approached on the basis of treating the disputed communication as if it were a “media publication” by reason of its extensive circulation. Here, the disputed publication is unquestionably a “media publication” but Iconic eschews any reliance on any media-specific defence (section 18(3), section

26 and, possibly, a common law Reynolds defence)24 and instead asserts an entitlement to rely on a defence that, historically, has not been available to media publications or communications to the world at large.

Qualified Privilege and “Communications to the World at Large”

62. In any event, as regards “communications to the world at large”, Duncan and Neill identifies three categories of communications to the general public that may be the subject of qualified privilege at common law, namely (1) reply to public attacks; (2)

Strictly speaking, neither the section 18(3) defence nor the defence under section 26 is confined to the media but, in practice, these defences are likely to be invoked by media defendants and many of the factors set out in section 26(2) appear to reflect such an expectation (see eg sub-sections (f) and (g)). As will appear, whether it was open to Iconic to plead a “Reynolds defence” is a matter of significant uncertainty.

reports of judicial, parliamentary and other kinds of proceedings and (3) “[c]ommunications which it is otherwise in the interest of the general public to receive” (§17.23). In all three categories, so it is said, the underlying principle is the same – the circumstances giving rise to the publication are such that it is in the public interest that it should be made, because of the public’s legitimate right or interest to receive the information conveyed by the publication (§17.24). None of these categories fit readily within the conventional reciprocal duty/interest paradigm.

(1) Reply to Public Attack

63. Dwyer v Esmonde [1878] 2 LR Ir 243, [1877] Ir 11 Cl 542 is a well-known Irish case in the first category, in which Palles CB rooted the privilege in the public’s right to form a just and true judgement on public charges as to the conduct and character of another and the interests of that person, in vindication of his or her character, to publish “all such matter as is material to the public forming such just and true judgment” (at 550). That is arguably a different rationale to that applicable to the classical form of qualified privilege defence based on reciprocity of duty/interest. Kinsella suggests that qualified privilege may, in certain circumstances, extend to a publication made in rebuttal of an anticipated attack, though the defence failed on the facts in that case (inter alia because the Court of Appeal considered the publication to have been excessive and disproportionate). The response must be relevant and proportionate to the attack but in general a statement made in public or to the general public (either through the media or, for example, by way of a speech in Parliament) will justify a response “to the widest possible target audience” (Cox and McCullough, §8-70.) Thus, in Adam v Ward, a response published in a national newspaper was held to be a legitimate means of replying to an “attack” made on the floor of the House of Commons. But whatever the precise parameters of this category of qualified privilege, and whatever its rationale, it has no application here.

(2) Fair and Accurate Reports

64. The second category of “communications to the world at large” identified in Duncan and Neill – reports of judicial, parliamentary and other kinds of proceedings – is of greater relevance. Gatley refers to it as “another category of qualified privilege at common law, of equally respectable antiquity, which covers reports to the public at large of certain matters of legitimate concern to them, for example the proceedings of courts or of Parliament” (§15-001). That suggests – correctly so it appears to me – that this category of privilege is distinct from conventional duty/interest privilege. That is a point to which I will return. In any event, this category of qualified privilege is also defeated by malice “but contains an ‘objective’ element in the requirement that the report should be fair and accurate” (ibid). “No doubt” – so Gatley goes on to say

– “the theory which underlay these ‘reporting privileges’ was (and is) that the information was already ‘public’ and that a newspaper carrying the report was doing no more than bringing it to the attention of its legitimate audience: they offered no protection to material originated by the newspaper or to ‘investigative journalism’” (ibid). This strand of qualified privilege thus protects against liability that might otherwise arise on the basis of the repetition rule (which treats as defamatory the repetition or republication of a defamatory statement made by a third party) and has no expressive function.

65. Thus, in Cox v Feeney 176 ER 445, (1863) 4 F & F 13, the verbatim publication by a newspaper of the report of an inspector of charities under the Charitable Trust Act (made after a public inquiry under the Charitable Trusts Acts and which appears to have been published on the conclusion of the inquiry, which was some years prior to the newspaper publication) was held to be protected by qualified privilege. In Wason v Walter (1868-69) LR 4 QB 73, the Queen’s Bench held that fair and accurate (“faithful”) reports of proceedings in Parliament were privileged, equating such reports with “faithful and fair reports” of court proceedings whose privileged status appears to have been well-established by then (see the observations of Lord Campbell in Davison v Duncan 119 ER 1233, (1857) 7 EL & BL 229, referred to in the judgment in Wason v Walter).25 In each case, such reports were published “to afford information to the public and for the benefit of society” and the advantage to the community from publicity being given to the proceedings “is so great, that the occasional inconvenience to individuals arising from it must yield to the general good” (at 88). As to the reporting of parliamentary proceedings specifically, it was “impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends” (89). Thus, “while honestly and The privilege attaching to fair and accurate reports of court proceedings (if published contemporaneously) was put on a statutory footing as early as 1888, in the form of section 3 of the Law of Libel Amendment Act 1888. Notably, the statutory privilege was expressly limited to newspaper publication.

faithfully carried on” those publishing such reports “will be free from legal responsibility, though the character of individuals may incidentally be injuriously affected” (96). The “incidental” injury referred to here, of course, is that potentially arising from the accurate reporting of a defamatory statement made in Parliament, rather than a defamatory statement made as a result of inaccurate reporting by the reporter. Inaccurate reporting was not protected.

66. Speaking of Wason v Walter, one commentator suggests that the judgment was built on “two essentially political foundations”, the first being that the legitimacy of Britain’s system of government had come to rest “on the informed consent of the citizenry” and, secondly, that such “informed consent” could not be achieved without the aid of press coverage of parliamentary proceedings.26 That would seem to be so here also and true of the privilege accorded to fair and accurate reporting of the proceedings of public bodies generally, not just of the Oireachtas.

67. In Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400, the Court of Appeal held that a “fair, honest, and accurate” report of the proceedings of the defendant (which exercised functions similar to the functions of the Medical Council in respect of registered medical practitioners), recording its opinion that the plaintiff was guilty of “infamous conduct”, was privileged if published in good Loveland, “Public libels and qualified privilege: a British solution to a British problem” (1997) Public Law 428, 433.

faith and without malice.27 The report was “a report of facts which have been finally ascertained and adjudicated upon” and the functions of the Council were ones in which the public at large were interested (408). The report stood, in principle, “in the same position as a judicial report” and enjoyed a similar privilege.28

68. In Kimber v The Press Association [1893] 1 QB 65, the Court of Appeal re-iterated that the publication without malice of a “fair and accurate” report of judicial proceedings before a “properly constituted tribunal” exercising its jurisdiction in open Court was privileged. In his judgment, Lord Esher MR acknowledged that such publication might, in some circumstances, be very hard on the person to whom it was made to apply “but public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret” and the common law recognised that “there may be greater danger to the public in allowing judicial proceedings to be held in secret than in suffering persons for a time to rest under an unfounded charge or suggestion” (at 69). But in every case the burden was on the publisher to establish that the report was fair and accurate (at 71 & 76).

69. In all these cases – and there are many others – the courts have held that it is in the public interest that fair and accurate information is available concerning the exercise by public bodies of functions fundamental to public governance (the legislature, the The conduct in question involving the publication of a work entitled “The Wife’s Handbook” at so low a price as to “bring the work within reach of the youth of both sexes to the detriment of public morals”. In contrast, in Purcell v Sowler (1877) 2 CPD 215, the report was of a meeting of poor-law guardians at which ex parte charges were made against the plaintiff, and which on that basis was held not to be privileged, there being no justification for the publication of what was effectively a “preliminary inquiry”.

courts) and/or which otherwise have public importance and/or which impact significantly on the public. Critically, the public interest recognised here is in fair and accurate reporting of the proceedings and/or decisions of these bodies. In all such cases, provided that the report is fair and accurate (and in the absence of malice) publishers need not concern themselves with the truth or falsity of the proceedings being reported. That is the essential bargain here – were publishers required to verify what they were reporting and/or take the risk of being sued for accurately reporting a defamatory statement made (for example) in Parliament or in the course of court proceedings, that would substantially deter reporting of parliamentary or judicial proceedings, to the detriment of significant societal interests. Therefore, privilege extends to such reporting, in the public interest, provided that the reporting is fair and accurate. Fairness and accuracy are essential ingredients of the privilege in this context. The interest of the public is in being given accurate information as to the proceedings in Parliament, in court or in other public bodies so that members of the public will have a reliable basis for forming opinions about such proceedings and the public body concerned and (it is to be hoped) maintaining public confidence in their work.

70. This serves to emphasise the significant differences between this category of qualified privilege and the conventional form of privilege founded on reciprocity of duty/interest. It is limited to reporting of (public) proceedings and its availability is bounded by restrictions (fairness and accuracy; public benefit) that have no application in the context of conventional duty/interest privilege. If this category of qualified privilege is to be accommodated within the duty/interest paradigm, that can only be on the basis of a very particular conception of duty/interest, limited to the communication of “fair and accurate” reports of a limited class of public proceedings.

71. It follows from the rationale for this category of qualified privilege that reports of foreign proceedings will not generally be privileged (at least at common law – the position is different under the 2009 Act) but in particular circumstances the subjectmatter of foreign judicial proceedings may be such that qualified privilege attaches, as for instance where the report of the foreign proceedings had “intrinsic world-wide importance” or had some “special connection with English affairs”, such as where proceedings involved the prosecution abroad of a British subject who had confessed to committing a number of offences in England: Webb v Times Publishing Co Ltd [1960] 2 QB 535.29

72. Of course, this line of common law authority has largely been superseded by statute. As early as the Newspaper Libel and Registration Act 1881, qualified privilege was afforded to fair and accurate newspaper reports of the proceedings of public meetings, if published without malice and “if the publication of the matter complained of was for the public benefit” and subject to the requirement to publish a reasonable statement of explanation or contradiction (section 2). That defence applied to both criminal and civil proceedings. That provision was repealed by the Law of Libel Amendment Act At page 570. In rejecting the suggestion that there was any blanket or general privilege for reports of foreign judicial proceedings, Pearson J noted that the risk of “incidental defamation” of third parties was greater in the case of foreign judicial proceedings, whereas the general rule of English procedure, and in particular criminal procedure, was that evidence was strictly confined to relevant matters: page 562.

1888 and replaced by a broader protection for fair and accurate newspaper reporting of public meetings and meetings of a range of other bodies and for reporting of certain reports and other publications. Again, that protection did not extend to “the publication of any matter not of public concern and the publication of which is not for the public benefit” and was subject to the publication of a reasonable statement of explanation or contradiction (section 4).30 As noted above, the 1888 Act also provided for a statutory privilege for newspaper reporting of judicial proceedings, subject always to the requirements of fairness and accuracy and contemporary publication (section 3).

73. The 1961 Act repealed the 1881 and 1888 Acts and, in section 24 and the Second Schedule, enacted a broader statutory qualified privilege defence for publications in newspapers or by broadcasters. Section 24 supplemented, and did not replace, common law privilege: section 24(4). In some instances (those set out in Schedule 2, Part 1) statements were privileged without contradiction or explanation but in others (Schedule 2, Part 2) the statements were privileged subject to contradiction. Every reporting privilege was subject to the requirement that the report be “fair and accurate”. Nothing in section 24 protected the publication or broadcasting “of any matter which is not of public concern and the publication or broadcasting of which is not for the public benefit” and the privilege was defeated by malice. In turn, the 2009 Act repealed the 1961 Act and replaced the statutory reporting defence with the much In providing for the exclusion of protection for “the publication of any matter not of public concern and the publication of which is not for the public benefit”, which is also a feature of the 2009 Act (and of the 1961 Act before it), it seems very doubtful that the legislature intended to impose additional hurdles for a defendant. The better view would appear to be that the legislature was of the view that these elements were already inherent in the defence recognised at common law: see for example the language in Wason v Walter.

broader provisions already referred to (which, as well as covering a broader range of statements, now encompass all forms of publication and are not limited to newspaper reporting and broadcasting).

74. It is unnecessary for the purposes of determining this appeal to decide whether, absent the provisions of Section 18(3) and Schedule 1 of the 2009 Act, newspaper reporting of the Tax Defaulters List might be protected by the common law qualified privilege recognised in the authorities referred to above. If so, such privilege survived the enactment of the 2009 Act: see section 18(5)(b), as well as section 18(1). It is arguable that, in mandating the regular compilation and publication of the Tax Defaulters List in Iris Oifigiúil – and to that extent relaxing the strict obligations of confidentiality that otherwise apply to Revenue – the Oireachtas must necessarily have taken the view that, as a matter of principle, the information in the List is a matter of legitimate public interest, the publication of which may be regarded as being for the public benefit. Crucially, however, any common law privilege that might arise would apply only to “fair and accurate” reporting of the information in the List. The reporting here was not, of course, fair or accurate insofar as it related to Mr Bird.

(3) “Communications which it is otherwise in the interest of the general public to receive”

75. As to the third and final category of “communications to the world at large” identified by it, Duncan and Neill refers (at §17.31) to the Reynolds defence and its statutory successor, section 4 of the Defamation Act 2013, which are considered below. But, the authors suggest, the common law had recognised certain situations “in which a defendant might rely on qualified privilege in relation to a publication to the world at large without having to comply with the rigours of the Reynolds defence” (ibid). Such cases, it is suggested, may continue to be of relevance, notwithstanding the abolition of the Reynolds defence and its replacement by statute (ibid).

However, with the exception of Tsikata, none of the cases cited by Duncan and Neill in this context involved media publication/reporting and in each case qualified privilege was held to arise on conventional duty/interest grounds, arising from the particular position of the defendant, the nature of the communications and the circumstances in which they were made.31 In my view, none provides any assistance to Iconic in this appeal. Neither do In Alexander v Arts Council of Wales [2001] EWCA Civ 514, [2001] 1 WLR 1840 the High Court had held that the Arts Council (a public body with responsibility for distributing public funds to arts organisations in Wales) had a duty to explain its funding decisions, particularly those that had become the subject of public controversy (indeed the privilege might have been put on the “reply to an attack” basis).

That finding was not challenged on appeal. In Seray-Wurie v Charity Commission of England and Wales [2008] EWHC 870 (QB), the High Court granted summary judgment to the Charity Commission in proceedings brought by the claimant arising from the publication by the Commission of a report of a statutory inquiry it had undertaken into a charity of which the claimant was a trustee. Unsurprisingly, Eady J considered that, given the statutory framework within which the Commission operated, it was under a duty to publish and the wider public had a legitimate interest in the information published (§23).

At issue in Bray v Deutsche Bank AG [2008] EWHC 1263 (QB) – another application for summary judgment – was a press release issued by the defendant, a public company listed on the Frankfurt and New York Stock Exchanges. As a result of its New York listing, the defendant was subject to strict disclosure obligations in respect of information which might reasonably be expected to materially affect the market for its securities, including obligations to make disclosure to the public press. Citing Horrocks v Lowe [1975] AC 135, Tugendhat J upheld the claim to qualified privilege, clearly considering that the disclosure rules gave rise to a duty to publish the impugned information and a corresponding and legitimate interest in the public in receiving such information.

The final case referred to in Duncan and Neill in this context, Tsikata v Newspaper Publishing plc [1997] 1 All ER 655 (a decision of the Court of Appeal of England and Wales), did involve media publication but it was largely decided on the basis of the statutory reporting privilege in the Defamation Act 1952 (the case concerned an article referring to the findings of a public inquiry in Ghana the cases involving statements by election candidates, starting with Braddock v Bevins [1948] 1 KB 580 which are next referred to in Duncan and Neill (§17.32).32

76. Cox and McCullough suggests that in some cases qualified privilege has been held to cover publication to “a very large number of persons”, while also noting that, as the Court of Appeal observed in Kinsella, “a duty to publish in the interests of the public as a whole will only be recognised in exceptional circumstances” (§8-102). The authors suggest that publication to the world at large “must focus on some aspect of public life that has the capacity to affect the rights and interests of all”, requiring “a public interest in having the statement published, and not merely an interest in the information contained therein” (§8-103). The authors later note that, whereas, historically, qualified privilege had been confined to more private communications, even prior to Reynolds “the concept of a more public duty to publish widely on matters of public interest was not unknown to the common law (albeit that this tended only to be recognised in limited circumstances and did not amount to any kind of general privilege for public interest publications)” (§9-141). They suggest that, regardless of whether the Reynolds defence can be pleaded in this jurisdiction, “it remains possible into the killing of three High Court judges), the significant controversy being around whether section 7(3) – the equivalent of section 18(5)(a) of the 2009 Act – operated to exclude the privilege. One sentence in the article fell outside the statutory privilege but that was held to be privileged at common law (subject to any issue of malice) given that it was so closely bound up with the other (statutorily protected) statements. It appears to me to be difficult to derive any broad principle from Tsikata that might avail Iconic here. The electoral cases have had a significant influence on the development of enhanced common law protection for certain forms of political speech.

that the statutory defence of qualified privilege … could be used to cover particular instances of public interest publications” (§9-139).33

77. In this context, Cox and McCullough refers to a number of authorities that warrant consideration. The first is the decision of the Privy Council in Perera v Peiris [1949] AC 1. Perera concerned the publication in the Ceylon Daily News of a number of lengthy extracts from the official report of a statutory commission investigating allegations of bribery involving members of the State Council of Ceylon, in one of which (which was reproduced verbatim by the newspaper and without comments of its own) Mr Perera was referred to unfavourably. The newspaper pleaded privilege (page 12). The case was complicated by the fact that Roman-Dutch law applied in Ceylon but the Privy Council had no difficulty upholding the decision of the Supreme Court of Ceylon dismissing the claim on the basis that the publication was privileged. The Judicial Committee (per Lord Uthwatt) explained that, in the case of reports of judicial and parliamentary proceedings, the basis for qualified privilege was not the circumstance that the proceedings reported were judicial or parliamentary, viewed as isolated facts, but that “it is in the public interest that all such proceedings should be The authors explain what they mean by “‘public interest’ material” at §9-14 and following. It involves two elements: first, it must involve material that is more than merely “interesting” to the public and must deal with a topic that has “the capacity to affect the rights and interests of the general public and, as such, is one in which the public as a whole has a legitimate stake” i.e. discussion of the material must be for public benefit (§9-18) and, second, the material “must be published in accordance with standards of reasonable journalism ... in the sense of having been properly researched, and presented and published in an objective and unbiased manner so that what is published is a reliable and trustworthy statement of the relevant facts” (§9-20). So conditioned, even if there is a qualified privilege for “public interest publications” – and for the reasons set out later I do not believe that there is – it would not be of any assistance to Iconic in the circumstances here.

fairly reported” (at 20). Reports of such proceedings stood in a “class apart” as the nature of such proceedings was treated as conclusively establishing “that the public interest is forwarded by publication of reports of their proceedings” (21). However, as regards reports of proceedings of other bodies, the status of such bodies was not conclusive and it was necessary to consider the subject-matter of the report. If it appeared that it was in the public interest that the report be published, privilege would attach (in the absence of malice). Here, in the Committee’s view, the public interest of Ceylon “demanded” that the contents of the Commission’s report should be widely communicated to the public (ibid). “Immunity” therefore attached to the publication. Perera is thus another “fair and accurate” reporting of public proceedings case.

78. In London Artists Ltd v Littler [1968] 1 WLR 607 (QB); [1969] 2 QB 375 (CA), the principal stars of a successful West End play, The Right Honourable Gentleman, all gave notice at the same time terminating their engagement. The producer, Mr Littler, wrote to the actors effectively accusing them of plotting to close the production and then held a press conference at which he distributed his letter to the press. The actors sued for defamation. Mr Littler pleaded justification but the evidence at trial made it clear that there had been no plot or conspiracy between the stars and the justification defence had to be withdrawn.

He also pleaded fair comment and privilege. In support of his claim of privilege, Mr Littler cited Webb v Times Publishing as authority for a principle of general application that there is a qualified privilege for any publication giving the public information on a subject of proper and legitimate interest to the public, unless it could be shown that the publication was not made bona fide for the purpose of giving the public such information (page 615). Cantley J roundly rejected that submission, noting that if such a principle were to be true without further qualification “it would indeed be a charter to persons including those whom Mr.

Ackner classified as the obstinate, the stupid and the unreasonable to disseminate any untrue defamatory information of apparently legitimate public interest, provided only that they honestly believed it and honestly thought that it was information which the public ought to have” (at 615D-E). The cases showed a “uniformity of approach”: the privilege for publication in the press of information of general public interest is confined to cases “where the defendant has a legal, social or moral duty to communicate it to the general public, or does so in reasonable self-defence to a public charge, or in the special circumstances exemplified by Adam v.

Ward”. That information appeared to be of “legitimate public interest” but was not sufficient to give rise to a duty to communicate: it had to be in the interests of the public for the communication to be made (at 619G). Before qualified privilege might be extended beyond its current limits, the court should take into account the extent to which public advantage may be outweighed by private injustice and injury and in the present type of case, any public advantage was likely to be heavily so outweighed (at 620D). Mr Littler also failed in his defence of fair comment, a holding upheld by the Court of Appeal on appeal.

79. In Blackshaw v Lord [1984] QB 1, the Daily Telegraph was sued on foot of an article it had published, written by Mr Lord, concerning a controversial credit interest relief grant scheme. The article stated that a number of senior civil servants had been reprimanded following an investigation of the scheme by the Public Accounts Committee, identified the plaintiff as the official in charge of the office responsible for approving the payment of grants under the scheme and stated that he had resigned from the civil service. The article was based on information disclosed at a press conference held by the Chair of the PAC as well as information provided to Mr Lord during a follow-up call with the press officer of the relevant Government Department, during which (so Mr Lord said) Mr Blackshaw was identified as the official who had been reprimanded (in fact it turned out that no civil servant had been reprimanded). The newspaper pleaded privilege by reference to Part II, paragraph 12 to the Schedule to the Defamation Act 1952 (which was in terms similar to Schedule 1, Part 1, Para

12 of the 2009 Act), contending that the words complained of were a fair and accurate report or summary of what had been said by the Departmental press officer to Mr Lord. On that point, the jury found against the newspaper and, on appeal, the Court of Appeal effectively held that the statutory privilege defence failed in limine, because paragraph

12 applied only to “authorised” and “official” information issued by or on behalf of a Government Department and did not apply to the reporter’s “own assumption, inference [or] speculation” as that would be to “accord to investigative journalism the protection provided for [the] reporting of official information” (at 24E-G, per Stephenson LJ; see also per Dunn LJ at 38E - 39B and per Fox LJ at 40G-41B).

80. The newspaper also sought to rely on common law privilege. The trial judge had ruled that the defence was, in principle, capable of arising as it was in the public interest to be informed of maladministration in the civil service but he left the defence to the jury which found for the plaintiff. On appeal, however, the Court of Appeal held that no common law privilege arose. According to Stephenson LJ, the question was whether, on the assumption that Mr Lord had recorded what the press officer had said to him “fairly and accurately”, the newspaper report of that conversation had been published in pursuance of a duty (whether legal, social or moral) to persons with a corresponding duty or interest in receiving it (at 26A). The authorities (and Stephenson LJ here referred to Perera, Webb and London Artists v Littler amongst others) did not support any relaxation of those requirements. There had to be a duty to publish to the public at large and an interest in the public at large (and not merely a section of the public) to sustain a claim of privilege. Privilege did not attach to a statement on a matter of public interest believed by the publisher to be true in relation to which he has exercised reasonable care (at 26B) and “fair information on a matter of public interest” was not enough without a duty to publish, nor was public interest and public benefit (at 26C). The nature of the matter published and its source and the position or status of the publisher must be such as to create a duty to publish, as for instance where damaging facts have been ascertained to be true or have been the subject of a report and there is sufficient public interest (at 26E) but not where damaging allegations or charges have been made and are still under investigation or have been authoritatively refuted (at 26F). It appears, therefore, that what Stephenson LJ had in mind was a potential reporting privilege, predicated on the fairness and accuracy of the report: see also at 27C. Stephenson LJ allowed that there might be “extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs” but there was “nothing of that sort here” (at 27A-B).

81. Dunn LJ agreed that there was no defence of “fair information on a matter of public interest” in defamation proceedings (at 33E). It was not enough that the publication should be of general interest to the public: the public must have a legitimate interest in receiving the information and there must be a correlative duty in the publisher to publish, which depends on the status of the information. Referring to the observations of Cantley J in London Artists v Littler, Dunn LJ stated that “if the law were otherwise… then there would be no need for a plea of fair comment, and anyone could publish any untrue defamatory information provided only that he honestly believed it, and honestly believed that the public had an interest in receiving it” (at 36A-B). Fox LJ also endorsed the observations of Cantley J in London Artists v Littler. While it was necessary that there should be occasions of privilege and that the press should be able to “publish fearlessly” what was necessary for the protection of the public, there was also a need to protect the individual from falsehoods. A test of “legitimate and proper interest” to readers would tilt the balance to an unacceptable degree against the individual as it would protect persons who disseminated defamatory information of apparently legitimate public interest, “provided only that they honestly believed it and honestly thought it was information that the public ought to have” (at 42D-F).

82. Thus, in both London Artists v Littler and Blackshaw, the court was unwilling to recognise a qualified privilege for media publications founded on general “public interest”, on the basis that to do so would tilt the balance too far against the protection of reputation. A requirement of honest belief – the absence of malice – would not provide sufficient protection for individuals defamed by mass media publications. That was a crucial insight for the development of the law in this area; if any form of privilege was to be developed for the protection of mass media publication generally, it would have to be accompanied by greater protections for individual reputation, above and beyond the mere absence of malice.

83. London Artists and Blackshaw do not appear to me to provide any assistance to Iconic’s arguments in this appeal. Nonetheless, they are important decisions insofar as they recognise the value of public interest journalism and because they can be seen as the precursors to the significant development of the law across the common law world to give greater protection to such journalism, developments to which I now turn.

Protecting Public Interest Journalism – Developments in the Other Jurisdictions

84. A comprehensive discussion of this issue is beyond the scope of this judgment. However, even a brief survey is sufficient to demonstrate that – with the notable exception of the United States – in every common law jurisdiction that has recognised enhanced protection for general media publication (publication to all the world), either the subject-matter of protection is limited and/or the availability of such protection is conditional on something more than the mere absence of actual malice.

85. Thus in a series of cases,34 the High Court of Australia has extended the defence of qualified privilege to public discussion (including media publication) concerning Principally, Theophanous v Herald & Weekly Times Ltd [1994] HCA 46, (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45, (1994) 182 CLR 211 and Lange v Australian Broadcasting “government and political matters” affecting the people of Australia (whether at Commonwealth, State or local level). But such publication is subject to a test of reasonableness of conduct. In Lange, the Court noted that whereas the requirement of “honesty of purpose” – the absence of malice – was seen by the common law as an appropriate protection for individual reputation because privileged occasions typically involved limited publication, that test was not appropriate when the publication was to a mass readership because the damage from such a publication was likely to be so much greater than a publication to a limited number of persons (at 572). As a general rule, publication “will not be reasonable unless the [publisher has] reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue” and, ordinarily, had sought and published the response (if any) of the person defamed (at 574). The defence recognised in Lange was characterised by the High Court as an “extended category of qualified privilege” (at 573).

86. There have also been significant developments on the other side of the Tasman Sea. In another action brought by former Prime Minister Lange, the New Zealand Court of Appeal held that the defence of qualified privilege was in principle available in respect of a statement which is published generally concerning the functioning of representative and responsible government, including statements bearing on the fitness for office of those elected or seeking election to Parliament or those with aspirations Corporation [1997] HCA 25, (1997) 189 CLR 520 (“Lange”). The plaintiff in Lange was a former Prime Minister of New Zealand.

to such office. While rejecting a requirement of reasonableness as an element of that defence, the court gave an extended meaning to section 19 of the (NZ) Defamation Act 1992 (ostensibly a statutory restatement of the common law concept of malice), the effect of which was to deny privilege where it was not “responsibly used”: Lange v Atkinson [2000] NZCA 95, [2000] 3 NZLR 385.35 Subsequently, the Court of Appeal departed from Lange and recognised “a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concern and which is subject to a responsibility requirement”: Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131, §56. Noting that the existence of such a defence had been rejected in Lange, the Court considered that subsequent societal and legal developments justified its recognition in 2018, including the increasing power residing outside the political sphere, instantaneous mass communication, the emergence of social media and the “citizen journalist” which had radically changed the nature of public discourse and increased recognition of privacy rights (ibid). The elements of that new defence are (a) that the subject matter of the publication was of public interest and (b) the communication was responsible, the defendant bearing the onus of proof on both and both being decided by the judge (§§58-63).36 For a discussion of the decisions in Lange, and a critical analysis of the Court of Appeal’s use of section 19, see the New Zealand Law Commission’s Report on Defaming Politicians A response to Lange v Atkinson (Report 64, August 2000). For a critique of this decision see Stephenson, “Durie v Gardiner: Public Libel Law and Stare Non Decisis”

(2020) 83 Modern Law Review 637-651.

87. The factors employed by the New Zealand Court of Appeal that go to the issue of whether the communication is “responsible” closely follow those identified by the Supreme Court of Canada in Grant v Torstar Corporation [2009] 3 SCR 640. There, the court identified a “middle road” between (at one end of the spectrum) “the traditional common law defence of qualified privilege, which offered no protection in respect of publications to the world at large” and (at the other end) “the American approach of protecting all statements about public figures, unless the plaintiff can show malice” (§85). That “middle road” involved recognising a defence that would allow publishers to escape liability where they can establish two essential elements: first, that the publication was on a matter of public interest and, second, that the publication was “responsible” (§98). To be of “public interest”, the subject matter must be shown to be one inviting public attention or about which the public has some substantial concern because it affects the welfare of citizens or is one to which public notoriety or controversy has attached (§105). It is not confined to government and political matters nor is it necessary that the defendant should be a “public figure” (§106). As regards the requirement that the publication should have been “responsible”, the judgment identifies a number of relevant factors, including the seriousness of the allegation, the public importance of the matter and its urgency, the status and reliability of the source, whether the plaintiff’s side of the story was sought and, if given, accurately reported, whether inclusion of the defamatory statement was justifiable and whether the public interest of the defamatory statement lay in the fact that it was made rather than in its truth (i.e. did it involve “reportage”). These factors are not exhaustive and any other relevant circumstances are to be taken into account (§§110-126).

88. Notably, the court in Grant characterised the defence as a “new defence”. In its view, it was not appropriate to characterise the defence as a form of qualified privilege. Qualified privilege involved “genuine reciprocity” whereas the reciprocal duty and interest involved in a journalistic publication to the world at large was “largely notional” (§93). Furthermore, the traditional defence of qualified privilege was, in the court’s view, grounded not in free expression but “in the social utility of protecting particular communicative occasions from civil liability” (§94).

89. A rather different approach has been taken in the United States. In the landmark case of New York Times v Sullivan 376 US 254 (1964), the US Supreme Court derived from the First Amendment a rule that any “public official” suing for defamation must prove that the defendant made the defamatory statement with “actual malice” (with knowledge that it was false or with reckless disregard of whether it was false or not).37 The class of “public official” is evidently a broad one. The actual malice standard was extended to “public figures” in Curtis Publishing v Butts 388 US 130 (1967). The class of “public figures” is amorphous and capacious and includes “involuntary public figures” – persons who have not sought or consented to publicity, such as the victims of crime – and “limited purpose public figures” – persons who “inject” themselves into issues of public controversy or public debate. In practice, if not in theory, public For an absorbing account of the litigation and the background to it, see Lewis, Make No Law: The Sullivan Case and the First Amendment (1991).

officials and public figures are left wholly unprotected by the law of defamation.38 That would not appear to be a constitutionally permissible approach in this jurisdiction.

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

90. Reynolds warrants detailed discussion given its more immediate impact on jurisprudence here.39

91. The plaintiff in Reynolds was, of course, the former Taoiseach Albert Reynolds. He sued Times Newspapers arising from the publication of an article (in the UK edition of the Sunday Times) which, according to Mr Reynolds, meant that he had deliberately misled the Dáil and his cabinet colleagues in relation to his state of knowledge regarding the Fr Smyth affair. The newspaper pleaded (inter alia) a defence of qualified privilege. In response, the plaintiff pleaded malice. The jury found in favour of the plaintiff but declined to award him any damages (by order of the judge, an award of 1p was then substituted). The judge also ruled that, on the facts found by the jury, Dabhoiwala, op cit, at 306. As the author observes, a significant question arises as to how far the class may be held to reach in the age of social media. Dabhoiwala gives a fascinating account of what he refers to as the “Accidental Exceptionalism of the First Amendment”, contrasting its “absolutist” approach (which is in fact the product of 20th century constitutional jurisprudence) with the “balancing” approach adopted elsewhere. Although he does not refer to the Irish Constitution in this context, it is clear that it adopts a balancing rather than absolutist approach to freedom of expression. So much is apparent from the terms of Article 40.6.1 itself, quite apart from the express protection of good name in Article 40.3.2 (which has no equivalent in the US Constitution). For a detailed and insightful analysis of Reynolds and the post-Reynolds jurisprudence, see Cox and McCullough at §9-77 and following.

the defence of qualified privilege was not available to the defendants. The plaintiff appealed on various grounds and the defendants appealed on the issue of qualified privilege.

92. The Court of Appeal (Lord Bingham CJ, Hirst and Robert Walker LJJ) set aside the verdict of the jury and directed a retrial on grounds of misdirection. As to the defence of qualified privilege, it held that the defence was not available to the defendants. It noted that the defendants’ “central submission” was that qualified privilege protects a publication to the public at large arising out of discussion of political matters, including the manner in which a public representative or public officer has discharged their public functions or relating to their public views and conduct or fitness for office (at 160H). The court reviewed the common law authorities on qualified privilege (many of them referred to above), referred to the jurisprudence of the European Court of Human Rights40 and to the Commonwealth jurisprudence also referred to above. It drew from the common law authorities a threefold test, involving (i) the “duty test” (whether the publisher was under a duty to publish, which duty could extend to the general public); (ii) the “interest test” (whether the persons to whom the material was Iconic do not seek to rely on the ECHR in its appeal, either directly or as a constraint on the interpretation of common law qualified privilege or the statutory defence in section 18(2) of the 2009 Act. Thus, it was not suggested that section 18(2) should be interpreted and applied in the manner contended for by Iconic on the basis that such was necessary to avoid any incompatibility with Article 10 ECHR. For that reason, this judgment does not address the Article 10 jurisprudence. For a discussion of it, see Cox and McCullough, §9-28 and following. As is there explained, Article 10 has been interpreted and applied to provide a heightened protection for publications on matters of public interest (§9-29). However, the ECtHR has also stressed the duties and responsibilities of publishers (whether journalists or not), including duties of due diligence and verification (§9- 47).

published – which could include the general public – had an interest in receiving that material) and (iii) the “circumstantial test” (whether the nature, status and source of the material, and the circumstances of the publication, were such that the publication should in the public interest be protected in the absence of express malice) (at 167A- C). It recognised that the duty of the media extended to informing the public and fostering discussion of matters of public interest and that the public had a right to receive such information (at 177A-D). In its view, however, the circumstantial test could not be discarded. While those engaged in public life had to expect and accept that their public conduct would be the subject of close scrutiny and robust criticism, they should not be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact “unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice” (at 177G-H). That approach was, the court noted, similar to the test of reasonableness upheld in Australia. The test proposed by the newspaper was, the court added, both too broad and too narrow. It was too narrow because it was confined to political speech and discussion and too broad because it would expose those who are properly the subject of political speech to “false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement” (at 177H-178A). Applying those principles, the Court of Appeal held that the circumstantial test was not satisfied because “the nature, status and source” of the defendants’ information, and the circumstances of publication, did not warrant protection (at 179B-G).

93. The House of Lords took a somewhat different approach. Lord Nicholls considered that the threefold test adopted by the Court of Appeal was “better avoided”: there was no separate or additional “circumstantial test”. Rather, the circumstances were to be taken into account in determining whether the duty-interest test was satisfied or, expressed more directly, “whether the public was entitled to know the particular information” (at 197G). In his view, recognition of a new category of occasion in which privilege derived from the subject matter alone – “political information” – would insufficiently protect individual reputation, at least as regards defamatory imputations of fact. A plaintiff’s ability to obtain a remedy provided that s/he could prove malice would not normally be a sufficient safeguard and some further protection for reputation was needed (at 201H). The common law should not develop “political information” as a new “subject matter” category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would be under-protective of reputation. A less categoric approach was appropriate, in which all relevant circumstances should be taken into account (at 204G-H). Lord Nicholls then identified 10 factors (emphasising that they were illustrative only and not exhaustive), including the seriousness of the allegation, the nature of the information and the extent to which the subject matter was a matter of public concern, the source of the information, the steps taken to verify the information and so on (at 205A-C). Given that the impugned article had failed to mention the plaintiff’s own version of events (given to the Dáil), Lord Nicholls agreed with the conclusion of the Court of Appeal that the defence did not avail the newspaper.

94. Each of the four other members of the panel gave separate speeches. Lord Steyn rejected the existence of any “generic qualified privilege of political speech” such as had been recognised in the United States (at 208F-211C). In his view, there was very limited support for the Court of Appeal’s “circumstantial test” in the authorities, which were cases of “institutional reporting” differing materially from reports resulting from investigative journalism (at 212C-D). He would, however, uphold qualified privilege for political speech “based on a weighing of the particular circumstances of the case” (at 213D-215E). Lord Cooke agreed with Lord Nicholls but also delivered a substantial speech of his own in which he noted that, to date, the only publications to the world to which qualified privilege had been extended at common law had been fair and accurate reports of certain proceedings or findings of legitimate interest to the general public (at 225E). In his view, the law should be developed to meet the reasonable demands of freedom of speech in a modern democracy by recognising that there may be a wider privilege depending on the particular circumstances, referring in that context to the non-exhaustive factors listed by Lord Nicholls. Lords Hope and Hobhouse largely agreed with the speech of Lord Nicholls. The House did, however, divide on the ultimate disposition of the appeal, with a majority in favour of dismissing it, while Lords Steyn and Lord Hope would have remitted the defence of qualified privilege for consideration at the retrial.

95. The so-called “Reynolds defence” was subsequently considered in a number of significant decisions of the Court of Appeal (Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR 13 (a “reportage” case) and Loutchansky v Times Newspapers Ltd (Nos 4 and 5) [2001] EWCA Civ 1805, [2002] QB 783), the Privy Council (Bonnick v Morris [2002] UKPC 31), the House of Lords (Jameel (Mohammed) v Wall Street Journal Europe [2006] UKHL 44, [2007]

1 AC 359) and the UK Supreme Court (Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273). A feature of these cases is the emphasis on the flexibility of the defence (characterised in Bonnick and Jameel as a defence of “responsible journalism”), with the court in Jameel stressing that the factors identified by Lord Nicholls in Reynolds were not to be seen as tripwires for responsible journalism and indicating that greater weight should be given to editorial judgment,41 as well as the differing views expressed as to whether the defence should properly be seen as a species of qualified privilege or as a “different jurisprudential creature” (per Baroness Hale in Jameel). That is an issue to which I return briefly below.

96. In any event, the “Reynolds defence” was abolished by section 4(6) of the (UK) Defamation Act 2013 and replaced by a new statutory defence of publication on a matter of public interest.42 That defence is not to be seen as a codification of Reynolds:

Cox and McCullough, §9-102 and following. Which is in the following terms:

“4(1) It is a defence to an action for defamation for the defendant to show that— (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.

(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455. In his judgment in Serafin, Lord Wilson emphasised the three requirements of the statutory defence – that the statement should have been on a matter of public interest, that the defendant should have believed that publication of it was in the public interest and that the belief should have been reasonable. These were, in his view, the issues that had to be addressed when the defence was relied upon and the Reynolds factors should not be used as a checklist and references to the media acting “responsibly” should also be avoided.43 Public Interest Journalism – Developments Here

97. Ireland has not been immune to these developments. In Hunter v Duckworth and Company [2003] IEHC 81, the High Court (Ó Caoimh J) heard wide-ranging arguments invoking many of the authorities referred to above as well as the Article 10 jurisprudence of the European Court of Human Rights and was persuaded that, in the absence of a clear legislative framework, the “flexible approach represented by the

decision of the House of Lords in Reynolds” ought to be adopted here. Ireland was a democratic state and clear recognition had to be given to the right of freedom of expression and, in his view, the approach adopted in Reynolds had the merit of enabling the law to develop on a case by case basis, having regard to the circumstances of each case and the nature of the rights pleaded by the parties and the courts would

(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.” A detailed discussion of the section 4 defence may be found in Gatley, chapter 16.

be able to assess whether the right to freedom of expression contended for in any given case should give rise to a privilege. Ultimately, while ruling against the second defendant on the preliminary issues, Ó Caoimh J permitted him to amend his defence, presumably so as to plead a Reynolds defence (pages 59-60). The defendants appealed to this Court but that appeal appears to have been unsuccessful, though I have not been able to find any record of the Court’s judgment and it appears that it did not engage with the substantive issues.

98. In Leech, Charleton J gave a ruling in the course of a trial with a jury in which he endorsed the approach of Lord Nicholls in Reynolds (and also noted with approval the subsequent observations of the House of Lords in Jameel), ruling that “a public interest defence can arise where the subject matter of a publication, be it an article or radio or television report, considered as a whole, was a matter of public interest” (Ruling, page 4). In his view, any analogy with ordinary qualified privilege, arising in private circumstances, was not necessarily helpful and in the test for a public interest defence, the issue of professional conduct by the reporting journalist was more relevant than any issue of malice (ibid). Thus, in addition to the issue of the public interest of the subject matter of the article or report, there was a further test to be met, namely whether on the evidence the steps taken to gather and publish the information were “responsible and fair”. Having then heard the evidence (no evidence having been called by the defendant newspaper) the Judge gave a further ruling in which he held that, while the test of “public interest” had “just about” been made out, there was no evidence capable of satisfying the test of “responsible and fair journalism”. As a result, the defence was not permitted to go to the jury.

99. There does not appear to be any subsequent case in which the Reynolds defence was sought to be relied on nor, it seems, has the issue of whether such a defence is available in this jurisdiction ever been considered at appellate level. While that might seem surprising, it may be explained by the enactment of the 2009 Act. As already noted, it provides in section 26 for a new defence of “fair and reasonable publication”. There is very limited authority on section 26. In Meegan v Times Newspapers Ltd [2016] IECA 327, the Court of Appeal (per Hogan J) made certain observations on the section

26 defence in the context of considering a discovery application, as I did in Desmond v Irish Times Ltd [2020] IEHC 95, again in the context of a discovery application. It was subsequently considered by Owens J in deciding an issue as to the admissibility of expert evidence in the same proceedings: Desmond v Irish Times Ltd [2024] IEHC

134. But none of those decisions involved the actual application of the section 26 defence. Cox and McCullough suggests that its impact has been limited, noting that, as of November 2021, it had never been successfully relied on (§9-54). So far as I am aware, that continues to be the position.

100. The Report of the Review of the Defamation Act 2009 recommended that section 26 should be amended “by adopting an approach along the lines applied in UK jurisdictions and in Canada”. As this judgment was being finalised, the Defamation (Amendment) Bill 2024 was before the Oireachtas and that Bill now proposes the substitution of a new section 26 defence (“Publication on matter of public interest”) in terms similar to (but not identical to) the section 4 defence in England and Wales.

In any event, however, no issue arises in this appeal as to the precise scope of the defence of fair and reasonable publication, given that it was never relied on by Iconic.

101. What is clear, however, is that the existing section 26 defence, in common with the common law “Reynolds defence”, the section 4 defence that replaced that defence in the United Kingdom, the new “publication on matter of public interest” defence proposed in the Defamation (Amendment) Bill 2024 here, the defence of responsible publication in Canada and New Zealand and the defence identified by the High Court of Australia in Lange, imposes requirements on publishers (whether media publishers or otherwise) above and beyond the requirement for honest belief/absence of malice, all such jurisdictions being of the view that, in the case of general publication/publication to all the world, that requirement would, on its own, be insufficient to protect reputation and good name. That was also the view taken by Charleton J in Leech. It is a view that I share, as I shall explain.

102. Furthermore, while different jurisdictions have taken somewhat different approaches to what is required to establish a defence in the case of general publication of matters of public interest, regardless of whether the requirement is framed in terms of reasonable or responsible publication, the circumstances of publication here were not such as to satisfy it. Only in the United States is the absence of actual malice considered to be sufficient protection for defendants but making all allowances for the protean nature of the class of “public figures”, it seems unlikely that Mr Bird could plausibly be suggested to be such a figure. In any event, I do not believe that the approach adopted in the United States should be adopted here or could properly be adopted given the very different constitutional context.

103. As I have said, the enactment of the 2009 Act may go to explain why, notwithstanding Hunter v Duckworth and Leech, the Reynolds defence appears not to have featured again in Irish defamation litigation. As I noted in Desmond v Irish Times Limited, even if the Reynolds defence was part of Irish law prior to the enactment of the 2009 Act – and having regard to the decisions in Hunter and Leech, there appears to be a strong argument to that effect – there is significant uncertainty as to whether it survived that enactment, having regard to the terms of section 15 of the 2009 Act: Desmond v Irish Times, §41. The issue is the subject of close analysis in Cox and McCullough. As the authors note, different views have been expressed by different judges in England and Wales as to whether the Reynolds defence was to be regarded as a species of qualified privilege defence (even if a variant of the traditional defence) or as a standalone defence. If the latter – and on the assumption that the Reynolds defence was part of Irish law immediately prior to the commencement of the 2009 Act – then it was abolished by section 15(1) of the Act. If the former, then it was saved by section 18(1) (§9-73). As we have seen, different views have also been expressed across the world as to whether the defences that have been developed for public interest journalism should be characterised as a modified qualified privilege defence (the view of the High Court of Australia in Lange) or as a new standalone defence (the view of the Supreme Court of Canada in Grant).

104. Cox and McCullough ultimately concludes that “[i]t is unclear … whether an Irish court would conclude that it was an aspect of the qualified privilege defence” (§9- 138). As I have said, the issue does not arise here in circumstances where Iconic did not seek to rely on a Reynolds defence. The parties did, however, address the issue fully in argument. Iconic submitted that the Reynolds defence was a form of qualified privilege defence which was part of Irish law prior to the commencement of the 2009 Act, which was continued by section 18(1) of the Act and which now co-exists with the section 26 defence. Mr Bird argued the contrary.

105. It is undesirable that, some 15 years after the commencement of the 2009 Act, there should be continuing uncertainty on this point. In the circumstances, and given that the point was addressed in argument, it is tempting to express a view on it, even if that view would be mere obiter. However, the Defamation (Amendment) Bill 2024 addresses this issue, proposing the amendment of the 2009 Act so as to provide expressly for the abolition of “[a]ny common law defence known as the Reynolds defence…”, without prejudice to pre-existing causes of action. In light of the prospect of imminent legislative intervention, it does not appear appropriate to venture an opinion, especially when the issue does not actually fall for determination in this appeal.

THE QUALIFIED PRIVILEGE APPEAL

106. With this analysis done, the issues arising in this appeal may now be addressed.

Argument

107. At the hearing of the appeal, Brendan Kirwan SC (for Iconic) helpfully identified five broad themes in his submissions. The first was the vital role of the press in democratic society, reference being made to this Court’s decision in Corcoran v Commissioner of An Garda Síochána [2023] IESC 15, [2023] 2 ILRM 237 and in particular to the observations of Hogan J regarding Article 40.6.1 of the Constitution (§55 and following). The second was that the rationale of the qualified privilege defence was that public convenience was to be preferred to private interests: it was on that basis that the defence protected the publication of even inaccurate material. The judgment of Charleton J in Leech was referred to in this context for its recognition that the public may have an interest in receiving information, even if inaccurate. Third, Mr Kirwan submitted that it was the occasion that was privileged. It was the occasion, rather than the statement, that ought to be the focus of attention. Fourth, it was said that it is clearly established that a defendant in defamation proceedings could rely on a plurality of defences, even if such defences were, or appeared to be, inconsistent. Thus, it was said, a defendant could rely on the defence of truth and also rely on a defence of qualified privilege, which it was suggested assumed untruth. Fifth, and finally, Mr Kirwan emphasised that the qualified privilege defence has never been static.

108. According to Iconic, section 18 of the 2009 Act is a “complete code”, which is to be interpreted and applied without reference to section 26. That section 26 was, in principle, available as a defence to media defendants did not imply that such defendants could not rely on the qualified privilege defence. Equally, the fact that the Article contained inaccurate information did not exclude a qualified privilege defence, even though that inaccuracy resulted from Iconic’s reporting, not from any underlying inaccuracy in the information provided by Revenue. The same logic that underpinned section 18(3) of the 2009 Act – that, in certain circumstances, it was in the public interest that inaccurate information could be put into the public domain under the protection of qualified privilege – suggested (so Iconic said) that the publication of the Article should be protected from suit, subject to the important “safety switch” of malice.

109. Iconic argues that it is clear that, as a matter of principle, the defence of qualified privilege may apply to publications to all the world, citing the Court of Appeal’s judgment in Kinsella. Albeit that the court in Kinsella had stated that the common law recognised that a publication to the world at large could be protected by qualified privilege “only in exceptional circumstances”, Iconic does not accept that the defence is so limited, noting that section 18 of the 2009 Act does not include any such threshold. But, if and to the extent that such a threshold is applicable, it necessitates an ad hoc case-by-case assessment. Here, Iconic says, the interest that the general public has in questions of tax compliance – an interest which Iconic characterises as a “social” interest – amounts to exceptional circumstances so that the publication by it of an article about Revenue settlements was in law a publication on a privileged occasion.

110. Iconic emphasises that it is not advocating for a “publishing or mass media free-forall”. Even so, counsel for Iconic had difficulty in identifying any limiting principles for the privilege being asserted. Publications on the general subject of “tax compliance” would, it seems, be protected by privilege, however inaccurate and however careless, provided only that the degree of carelessness was not so extreme as to give rise to an inference of malice. Publications concerning compliance with the law more generally would, it seems, also be privileged, so that, for instance, if a newspaper published an article wrongly identifying X as having been convicted of a criminal offence, when in fact the culprit was Y, then, absent a showing of malice, X would be left without a remedy.44

111. Mr Kirwan fairly accepted that he could not point to any authority which supported the contention that there was such a broad privilege for publications to the world at large either at common law or under section 18(2) of the 2009 Act. But, he said, there was nothing in the authorities excluding that contention either. Referring to Hynes-O’ Sullivan, he observed that section 18(2) had “recalibrated” the law, though he If this were so, it would mean that inaccurate reporting of court proceedings would be privileged under section 18(2), even though such reporting would, as a matter of hypothesis, fall outside the protection of section 17(2)(i) of the 2009 Act. It will be recalled here that the Law Reform Commission specifically rejected the suggestion that reporting of court proceedings falling short of the statutory requirements of fairness and accuracy should be protected by qualified privilege, considering that the availability of such a defence would not appropriately balance the competing constitutional right to a good name and the right to freedom of expression and would constitute a disproportionate restriction on the right to a good name.

accepted – correctly – that there was nothing in section 18(2) to indicate that the Oireachtas intended to radically recalibrate the qualified privilege defence (of course, the entire thrust of Iconic’s argument on appeal is precisely that section 18(2) effected such a radical recalibration of the defence). Nothing in section 18 precluded Iconic’s reliance on section 18(2) and while it might be “unpalatable” that Iconic should have a defence given its impact on Mr Bird’s right to his good name, that was – so it was said – the effect of the subsection.

112. Declan Doyle SC (for Mr Bird) took issue with virtually every element of Iconic’s arguments. He began by noting the duty/interest paradigm that was central to the defence of qualified privilege at common law and which was reflected in the provisions of section 18(2) of the 2009 Act. For a defence of qualified privilege to be established, Iconic had to demonstrate that the publication here was within the “four walls” of section 18. That was not the position here: the general public had no interest in receiving the information. To the contrary, the public interest was against the publication of inaccurate information. Qualified privilege did not, he contended, extend to publications to all the world, other than as provided for in section 18(3) and then only on condition that the publication was “fair and accurate”. If there were exceptional cases, as Kinsella appeared to suggest, this was not such a case. There might be cases where there was such urgency in communicating information to the public generally that qualified privilege might apply (a scenario referred to by Stephenson LJ in Blackshaw v Lord) but those were not the facts here.

113. Mr Doyle accepted that the common law had been developed in Reynolds but the Reynolds defence had additional protections to protect reputational rights. The Reynolds defence was not, he submitted, a qualified privilege defence at all but an entirely new defence. Section 26 of the 2009 Act was, at least in part, a statutory codification of that defence. In his submission, it was significant that Iconic had not sought to rely on the section 26 defence or any defence under section 18(3).

Analysis and Conclusions

114. The first issue identified in the Determination granting leave to appeal to this Court is whether and, if so in what circumstances and subject to what conditions, the section 18(2) defence may be available in respect of statements published to the world at large. However, it appears to me that a prior issue arises which must be considered first, namely whether, and in what circumstances, the common law defence of qualified privilege applies to such statements. By that I mean the conventional qualified privilege defence, based on reciprocity of duty/interest and defeasible only by malice. That is the defence asserted by Iconic here. We are not here concerned with any form of Reynolds defence, whether that defence is regarded as a species of qualified privilege defence or not, for the simple reason that no such defence is relied on by Iconic.

115. I have largely addressed this issue already and it is necessary only to draw together the principal strands of that analysis. The starting point is that the defence of qualified privilege does not generally apply to publication to the world at large, precisely because of the absence of the necessary reciprocity of duty/interest. So much is clear from decisions such as Littler and Blackshaw v Lord.

116. Furthermore, as those decisions explicitly recognise, there are compelling policy grounds for not extending qualified privilege (at least as conventionally understood) to such publication. Contrary to Iconic’s submission, malice would not be, an adequate “safety switch” in this context. As Iconic itself emphasises (in answer to Mr Bird’s plea of malice), the onus of proving malice is on the claimant – here Mr Bird – and that onus is, as Iconic says, a “heavy one”. Iconic refers in this context to the decision of the Court of Appeal in Gordon v Irish Racehorse Trainers Association [2022] IECA

303 (“Gordon”), in which Murray J (for the court) endorsed the definition of malice in Cox and McCullough, as authority for the proposition that, while knowledge of falsity or indifference as to the truth may give rise to an inference of malice, malice is not established where the publisher had an honest belief in the truth of the statement, even where that belief is unreasonable and/or is the result of the publisher’s own negligence (Gordon, §94, citing Cox and McCullough, §8-192). Thus, Iconic says, mere carelessness – even gross carelessness – will not be sufficient to establish malice, provided only that the publisher honestly believed – however unreasonably – that the statement was true.

117. Here the journalist responsible for the Article gave evidence that she had made an honest mistake. She clearly had no animus against Mr Bird – her evidence was that she did not know who he was – and therefore there could be no suggestion of improper motive on her part. While, on any view, she was guilty of carelessness – carelessness that led directly to the incorrect identification of Mr Bird as a tax defaulter – in the circumstances it is doubtful that there was a basis on which the issue of malice could properly have been left to the jury and difficult, if not impossible, to see how a properly instructed jury might have proceeded to make a finding of malice.

118. If the only safeguard for a defamed claimant is to discharge the “heavy onus” of establishing malice, and if, as the authorities suggest, a finding of malice is excluded by an honest belief in the truth of the defamatory statement, however unreasonable that belief may be and regardless of whether that belief was the product of the publisher’s own carelessness, then in the context of media publication, malice is an illusory and inadequate “safety switch”.

119. To extend the common law defence of qualified privilege to publications made to all the world, conditioned only on the absence of malice, would radically undermine the protection of reputation which, in this jurisdiction, is an express constitutional imperative. No doubt, as Mr Kirwan submitted, the press play an important role in the proper functioning of democratic society in the State. That is expressly recognised in Article 40.6.1 of the Constitution and acknowledged by this Court in Corcoran. But it is trite to observe that freedom of the press, and its rightful freedom of expression, is not the only constitutional value engaged here. Protection of the good name of the citizen is an entrenched constitutional value also. The rhetorical invocation of Article

40.6.1 does not really assist in the resolution of the issues in this appeal. Nor is it of much assistance to observe that the rationale of the qualified privilege defence is that public convenience should be preferred over private interests. No doubt, that abstract statement of principle is true as far as it goes but it hardly assists in determining the proper parameters of the defence. It certainly does not suggest – as Iconic’s submissions at times seemed to come close to suggesting – that private interests must always yield to what is asserted to be the “public convenience” and/or that the fact that there may be many situations in which the publication of inaccurate and defamatory statements is protected by privilege implies that the law should generally look with equanimity at the publication of defamatory statements, particularly where such statements are published to the world at large. Nor is it the case, as was repeatedly suggested in argument, that privilege is intended to protect false statements and thus, by extension, the availability of privilege indicates that the law is not really concerned with falsity. That is, in my view, a fundamental misunderstanding of privilege. Privilege is intended to foster free communication in certain defined circumstances and/or for certain defined purposes. It does so by protecting the speaker or publisher from potential liability by the provision of a defence that does not require the speaker or publisher to take on the burden of establishing the truth of what has been said (or, in the case of a newspaper, what they have reported). The protection of false speech is an incidental effect of that protection, not its principal objective or primary rationale. That protection inevitably comes at a price to the reputation and good name of those about whom false and defamatory statements may have been made but the public interest in the value of free communication in the particular circumstances outweighs the private interests concerned.

120. It is, as the earlier analysis demonstrates, precisely and expressly for the protection of reputational interests that the broader defences that have developed for public interest journalism (and public interest speech generally) require something more than the absence of malice and focus on whether it was reasonable or responsible to publish the disputed statement.

121. There are, undoubtedly, exceptions to the general rule that qualified privilege does not apply to publication to all the world. The principal such exception relates to fair and accurate reporting of certain proceedings and reports, now largely subsumed into section 18(3) of the 2009 Act (and, before that, the corresponding provision in the 1961 Act). I have considered that exception, and the other exceptions established in the authorities, in some detail earlier. None of these specific and relatively small-bore exceptions are capable of being stretched to accommodate a generally applicable media privilege. I have no doubt that, in stating that the common law recognises that only in “exceptional circumstances” is publication to the world at large protected by qualified privilege, the Court of Appeal in Kinsella had these exceptions in mind, as well as the Reynolds defence and its equivalents elsewhere in the common law world (which, as I have already explained, I do not consider to be a species of qualified privilege defence, though nothing turns on that issue here). The court in Kinsella was not, in my view, suggesting that a defence of qualified privilege for general media publication may be available where, on the basis of some ad hoc and wholly openended assessment, the circumstances are adjudged to be “exceptional”. That would involve a form of palm-tree justice and would be wholly inconsistent with the principle of legal certainty.

122. I respectfully disagree with Cox and McCullough insofar as it suggests that, quite apart from the Reynolds defence, the defence of qualified privilege at common law may extend to media publication/publication to the world at large on the basis of a recognition of a duty to publish public interest material in the interests of the public as a whole: §8-102 and following. In my view, the authorities, including Kinsella, provide no support for that suggestion, save as regards the fair and accurate reporting of particular proceedings and reports. The proposition that such a defence can be accommodated within the confines of conventional duty/interest privilege was precisely that advanced and rejected in Littler and Blackshaw v Lord, for reasons which resonate forcefully in this jurisdiction. Neither Reynolds nor any of the post- Reynolds case law (including the decisions in this jurisdiction in Hunter and Leech) cast any doubt on Littler or Blackshaw v Lord.

123. Accordingly, in my view, no common law qualified privilege defence would be available to Iconic here and so no such defence is available to it pursuant to section 18(1) of the 2009 Act. Of course, section 18(1) was not the focus of Iconic’s argument: rather, its principal contention is that section 18(2) provides it with a defence in the circumstances here.

A Defence under Section 18(2)?

124. It may be convenient at this point to set out the terms of section 18(2) again. It provides that:

“(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the

said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.

125. As already noted, section 18(2)(a)(ii) was clearly intended to reverse this Court’s

decision in Hynes-O’ Sullivan. In that respect at least, the section 18(2) defence clearly differs from (and is broader in scope than) the defence at common law. Another difference – or at least an apparent difference – is that section 18(2) eschews the language of “occasion”. Neither party invited the Court to attribute any particular significance to that. That appears correct. It seems to me that section 18(2) seeks to set out the essential elements of what, in common law parlance, is labelled an occasion of privilege. As authoritatively explained by Lord Atkinson in Adam v Ward, that is an “occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it”. That appears to me to accord precisely with the substance of section 18(2), read with the definitions of “duty” and “interest” in section 18(7). As Cox and McCullough puts it, the formula set out in section 18(2) is the same formula as underpins the common law defence: §8- 10(b). True it is that section 18(2) reverses the common law sequence by referring first to the duty or interest of the recipient of the communication rather than the duty or interest of the maker of the communication but, while that difference was also noted by the parties, again it was not suggested that it had any particular significance.

126. In Nolan v Laurence Lounge Ltd [2018] IEHC 352, [2022] 2 IR 596, the High Court (MacGrath J) suggested that the section 18(2) defence may be narrower than the common law defence continued by section 18(1) in that mutuality is a requirement of the section 18(2) defence whereas the common law defence may apply even in the absence of mutuality: §117. I did not understand Iconic to make such an argument here. It effectively advances the contrary argument, namely that section 18(2) is broader – indeed significantly broader – in scope than the common law defence. It may be that, given the way that the defence has developed historically, there are aspects of the common law defence which are difficult to rationalise on a strict mutuality/reciprocity of duty/interest basis – defence to a public attack is perhaps one such example, as well as the category of qualified privilege relating to reports of parliamentary, judicial and other forms of public proceedings (though, as noted, that category has effectively been subsumed into section 18(3) in any event) – and which therefore do not readily come within the scope of section 18(2) but which are continued by section 18(1). However, no such issue arises in this appeal and, in the circumstances, it is not necessary to express any view on the decision in Nolan v Laurence Lounge Ltd.

127. In my view, and subject to the points just made, it is clear from the terms of section 18(2) that, apart from reversing Hynes-O’ Sullivan, the Oireachtas essentially intended to restate in statutory form the common law defence of qualified privilege. If that be so, then it follows that section 18(2) no more provides a defence to Iconic here than the common law would and, for the reasons set out already, there is no scope for the application of the common law defence of qualified privilege in the circumstances here.

128. That, in enacting section 18(2), the Oireachtas intended to radically redraw the parameters of the qualified privilege defence is, it seems to me, wholly implausible on a number of different levels. First, there is the language of section 18(2) itself, which is the “best guide to the result the Oireachtas wanted to bring about” (per Murray J in Heather Hill, §115). But the words of section 18(2) are not in any event to be approached as if “written on glass, without any context or background”: Bookfinders Ltd v Revenue Commissioners [2020] IESC 60, per O’ Donnell J (as he then was) at §52). An essential element of the context and background here is the pre-existing law. It may be that, as Murray J observed in Heather Hill, the presumption against “radical amendment” of the law applied by Henchy J in Hales v Minister for Industry & Commerce [1967] IR 50 is sometimes applied beyond its proper limits. But, if there is any scope for its continued application – and it is clear from Heather Hill that, within proper limits, the principle retains its vitality – this is such a case. On Iconic’s argument, section 18(2) radically altered the law of qualified privilege in the State, extending its protection to a broad but ill-defined category of media and non-media publication (including publication on the internet and on social media), even if careless or irresponsible, subject only to the absence of malice. There is nothing in the language of section 18(2) that even hints at such a legislative intention.

129. But the objections to Iconic’s reading of section 18(2) go even further. Its construction would significantly distort the 2009 Act as a whole. It would provide a defence for inaccurate reporting in circumstances where the Oireachtas has, in section 18(3), legislated to provide a defence, strictly conditioned upon the fairness and accuracy of the reporting and also requiring consideration of public interest and public benefit. Furthermore, as O’ Moore J observed in the Court of Appeal, to give such an interpretation to section 18(2) would effectively swallow up section 26 entirely. It is, of course, a basic tenet of statutory interpretation that the Oireachtas is presumed not to “waste its words or say anything in vain”: Whillock v Cork County Council [1993]

1 IR 231, per Egan J at 239. But the reading of section 18(2) urged by Iconic would do more than simply render section 26 redundant. By extending protection – in theory qualified, but in reality effectively absolute – to mass media publications to all the world without any of the protections and restrictions provided for in section 26, it would negate the judgment made by the Oireachtas in deciding on the parameters of the section 26 defence and frustrate its purpose in enacting that defence. While the 2009 Act does not go so far as to attempt a codification of the law of defamation, in abolishing all common law defences (subject only to sections 17(1) and 18(1)) and putting those defences on a statutory footing, as well as providing in statute for new defences such as that in section 26, it is clear that the Oireachtas was seeking to achieve greater clarity and coherence in this area. The 2009 Act is, par excellence, an example of a “composite statute, not a collection of disassociated provisions” (Heather Hill, §116) and a coherent reading of it is particularly desirable. Reading section 18(2) in the manner urged by Iconic would significantly undermine its coherence.

130. As well as fundamentally distorting the structure and balance of the 2009 Act, such a construction of section 18(2) would give rise to significant constitutional issues, in light of the express and imperative provisions of Article 40.3.2. The denial of a remedy to Mr Bird in the circumstances here would certainly call into question the constitutionality of section 18(2): see the observations made by this Court in Hynes- O’ Sullivan.

131. In truth, this is a case where every element of the interpretative exercise – the preexisting legal position, the express terms of section 18(2) itself, the provisions of the 2009 Act as a whole and the constitutional context – all point clearly and firmly to the same conclusion: that the category of publication at issue falls outside the scope of section 18(2) and is not protected by qualified privilege.

132. I should add, as it was a point made more than once by Iconic in argument, that the issue has nothing to do with the pleading of alternative defences in defamation actions. A defendant in such an action may indeed plead alternative defences: see Cox and McCullough, §13-69, as well as MacGrath J’s judgment in Nolan v Laurence Lounge.

The issue here, however, is not one of pleading. Rather, the issue is whether section 18(2) of the 2009 Act provides a defence to Iconic in the circumstances here. Section 18(3) and section 26 are relevant in that context not because they provide alternative defences (as already explained, neither defence was pleaded by Iconic) but because those provisions throw light on the proper parameters of the section 18(2) defence.

133. Before concluding the discussion of this aspect of the appeal, I wish to come back to the suggestion in Cox and McCullough to the effect that section 18(2) is open to being read so as to encompass public interest reporting: §9-139 and following. In my view, the decision of the Court of Appeal in Kinsella provides no support for that suggestion. Nor, in my view, does Nolan v Sunday Newspapers Limited [2017] IEHC 367; [2019] IECA 141. In Nolan, in defence of a defamation action arising from its publication of articles suggesting that the plaintiff was the “biggest swinger in town” and the organiser of “orgies”, the defendant newspaper pleaded that the articles were matters of public interest which it was “entitled and duty bound to report”. That defence was dismissed by the High Court (O’ Connor J) as a “vacuous plea” (§37) and, while the Court of Appeal (per Peart J; Whelan and Baker JJ agreeing) hinted that the Judge might have expressed his conclusion “more extensively”, it nonetheless upheld that

conclusion, adding that it did not consider that the evidence established that the plaintiff (a former GAA star) was a “public figure” (§§46-47). Both judgments are short and make no reference to any of the authorities on qualified privilege, whether at common law or under section 18(2) of the 2009 Act, particularly as regards media publications to the world at large. The absence of any reference to Kinsella, which had been decided by the Court of Appeal only a few months before its decision in Nolan, is perhaps particularly surprising. The extent to which that issue was the subject of submission is unclear, nor is it clear how the question of whether the plaintiff was a “public figure” was considered to be relevant to the issue of qualified privilege. In the circumstances, I do not think that it would be appropriate to attach any weight to Nolan in this context.

134. More generally, the suggestion that section 18(2) might be read to encompass a defence of public interest reporting appears to depend critically on a very particular meaning being given to “public interest material”, involving a requirement that publication of the material should be “for the public benefit” (Cox and McCullough, §§9-17 and 9-18) and that the material “must be published in accordance with standards of reasonable journalism” (§9-20). In my view, however, even if section 18(2) is considered in isolation – and that would not be a correct approach – reading that framework into it would go far beyond the permissible scope of statutory interpretation and would instead involve a rewriting of the provision enacted by the Oireachtas.

135. Furthermore, and crucially, the Oireachtas has provided a statutory defence for public interest reporting, in the form of section 26 of the 2009 Act. That is clearly an attempt by the Oireachtas to balance the rights and interests of publishers (not just media publishers but certainly including them) in communicating information (and opinion) to the public, the rights and interests of the public in receiving such information (and opinion) and the reputational rights of citizens. Reputational rights have a firm anchor in the text of the Constitution but the other interests involved are also real and cogent, as was recognised in Hunter and Leech. Striking that balance is difficult: as Cox and McCullough correctly observes, there is no objectively right or wrong answer and no objective yardstick for assessing whether any given rule, or set of rules, strikes the “right” balance: §1-17. Different jurisdictions have taken differing approaches, depending on the relative weight given to the competing rights and interests involved. The Oireachtas would appear to have significant latitude in this area, though that latitude is not unbounded and its judgment is not immune from review. Notably, the Oireachtas itself appears to be in the process of significantly redrawing the contours of the section 26 defence. However, no issue as to the scope of section 26, or as to whether it sufficiently respects the Article 40.6.1 rights of publishers, arises in this appeal. The issue in this appeal is whether section 18(2) of the 2009 Act can and should be interpreted so as to provide a parallel defence for public interest reporting, encompassing publications such as that at issue here and shorn of the limitations in section 26 (and in section 18(3)) of the 2009 Act. For the reasons already set out, the answer to that question is clear: it cannot.

136. That conclusion does not, in my view, demonstrate any lacuna in the 2009 Act or in defamation law more generally. Had Iconic reported fairly and accurately on the Tax Defaulters List – a requirement which, as already noted, could not be said to have been either complex or burdensome – its report would have been protected under section 18(3). Regrettably, the Article was materially inaccurate insofar as it suggested that Mr Bird was associated with and/or responsible for significant tax defaults by three companies listed in the Tax Defaulters List, companies with which he had in fact no connection, and the jury took the view that that amounted to a significant defamation of him, as it was clearly entitled to do.

137. The qualified privilege appeal must therefore be dismissed.

THE COSTS APPEAL

138. The costs appeal raises a net question as to the proper construction and application of Section 17(2) in circumstances where Mr Bird succeeded in the High Court but where the jury made an award of €75,000 and where, therefore, the damages recovered by him did “not exceed €75,000”.

139. Section 17 of the 1981 Act seeks to limit the costs recoverable by a successful plaintiff in certain circumstances. It is “a self-contained statutory scheme designed by the legislature to impose a cap on costs that may be recovered by a successful plaintiff or applicant where the order made in his favour is made by a court which is not the lowest having jurisdiction to make the order granting the relief the subject of the order” (Kelly v Minister for Defence [2008] IEHC 223, per Dunne J at page 15). The purpose of that statutory scheme was considered by this Court in O’ Connor v Bus Átha Cliath [2003] IESC 66, [2003] 4 IR 459, though O’ Connor focussed on section 17(5) rather than Section 17(2).

140. While this appeal is concerned with the operation of Section 17(2), that subsection cannot properly be understood without referring also to section 17(1) and 17(3). Section 17(1) lays down a general rule that where an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in section 17(2) or 17(3)) and the court is not the lowest court having jurisdiction to make an order granting the relevant relief (which includes damages) “the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court”. That is a general, and apparently unqualified, rule.

141. Section 17(2) then makes specific provision (to the exclusion of the general rule in section 17(1)) in respect of claims for damages brought in the High Court, as follows:

“(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds €64,000 but does not exceed €75,000, the plaintiff shall not be entitled to recover more costs that he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such a judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein that the proceedings should have been commenced and determined in the High Court.”

142. Section 17(3) is also relevant in this context. It provides (again to the exclusion of the general rule in section 17(1)) that where, in an action commenced and determined in the High Court, the plaintiff recovers damages exceeding €15,000 but not exceeding €38,000, the recoverable costs are capped at the lower of “the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court”.

143. Although not directly concerned with Section 17(2) (because the level of damages awarded was such as to trigger the application of section 17(3), in Savickis v Governor of Castlerea Prison [2016] IECA 372, [2016] 3 IR 292 the Court of Appeal (per Irvine J) explained that Section 17(2) permits the trial judge to grant a special certificate if the damages awarded fall in the specified range (the relevant amounts have subsequently been amended to reflect the increase in Circuit Court jurisdiction) “thereby [allowing] the plaintiff who falls only marginally short of the court’s jurisdiction to argue in favour of High Court costs”. In contrast, Irvine J observed, it was only where a plaintiff’s claim fell “manifestly short of the High Court jurisdiction”

– as was the position in Savickis itself – that they would “necessarily be penalised for not pursuing their claim in the lower court” (§25).

144. In the High Court, Owens J expressed the view that “the Act really places the risk of incorrect jurisdiction on the person bringing” the proceedings. If section 17(1) stood on its own, that might well be so, but it does not. Instead the Oireachtas has provided that, as regards claims coming within the scope of Section 17(2) – claims that, in the words of Irvine J in Savickis, fall “marginally short” of the High Court jurisdiction – the Court may, by granting a “special certificate”, enable the plaintiff to recover High Court costs. Here, of course, Mr Bird could not have come closer to the High Court jurisdiction: in O’ Moore J’s vivid phrase the margin between the award made and the award that would have entitled Mr Bird to High Court costs was “gossamer thin”. I agree with O’ Moore J that the High Court Judge failed to give adequate weight to that fact in making the order that he did.

145. That Mr Bird’s award was at the very boundary of the High Court jurisdiction is, in itself, a strong indicator that “it was reasonable in the interests of justice generally … that the proceedings should have been commenced and determined in the High Court”. This was not a claim for liquidated damages, in which Mr Bird and his advisors might be expected to be able to place a precise monetary value on his claim. Rather it was a claim for general damages for defamation. Section 31 of the 2009 Act provides some guidance as to the factors to be considered by a court (or jury) in assessing damages and, no doubt, the decision in Higgins v Irish Aviation Authority (which was given well after the institution of these proceedings) also assists significantly in that exercise. Even so, regardless of whether they are assessed by a jury or by a judge, damages for defamation cannot be calculated or predicted with fine-grained certainty. Lawyers are not clairvoyants. The difficulty in predicting a defamation award, particularly when made by a jury, was identified by this Court as a factor for declining to make an order under section 17(5) of the 1981 Act in Mangan v Independent Newspapers [2003] 1 IR 442. The same point was made by Barton J in Gordon v Irish Racehorse Trainers Association [2020] IEHC 446, §§33-36.

146. The assessment that it was appropriate to bring these proceedings in the High Court was, in my view, vindicated by the jury’s award. Bringing the proceedings in the Circuit Court, would clearly have involved a risk that Mr Bird would be undercompensated (by reason of the jurisdictional limits applicable to the Circuit Court). I do not believe that Section 17(2) required Mr Bird to assume such a risk and, in these circumstances, it appears to me that it would be wholly unjust to penalise Mr Bird for avoiding that risk (by proceeding in the High Court) by limiting his costs to the costs he would have recovered had he brought proceedings in the Circuit Court.

147. There is, in my view, a clear parallel with this Court’s decision in Reaney v Interlink Ireland Limited [2018] IESC 13, [2022] 1 IR 213. There the plaintiff failed marginally to beat a lodgement and therefore faced the adverse costs consequences provided for by Order 22, Rule 6 RSC, consequences which O’ Donnell J (as the Chief Justice then was) characterised as “ruinous” (§37). However – similarly to Section 17(2) – Rule 6 permitted the judge to “otherwise direct” for “special cause” to be specified in the order. There were complex issues going to quantum in Reaney and O’ Donnell J noted that, if the ultimate outcome had varied by plus or minus 10%, neither party could have plausibly complained or usefully appealed (§38). That is certainly the case here also. The fundamental question was whether the plaintiff had acted reasonably in pursuing a claim notwithstanding the lodgement and that question could not be answered solely by reference to the fact that the ultimate award was €100 more, or €100 less, than the amount lodged. While there might be cases where the issues were so clear cut and the monetary awards so clearly fixed that failure to beat lodgement by even a small amount should be given decisive weight, in a case where the calculation of damages was much less clear cut and where an award is very close to the amount of the lodgement, the court was entitled to consider whether it was necessary or just to apply the draconian consequences of Order 22, Rule 6 or to do so without qualification (§39). In O’ Donnell J’s view, where a plaintiff succeeded in getting an award “very close” to the amount of the lodgement, and certainly within 5%, the trial court was entitled to consider that in itself a reason to “otherwise direct” and entitled to consider the broader question of whether it was reasonable for the plaintiffs to pursue their claim notwithstanding the lodgement (ibid).

148. Reaney was concerned with a rule of court rather than a statutory provision and the discretion conferred by Order 22, Rule 6 and by Section 17(2) are expressed somewhat differently. Even so, the decision appears to me to be helpful. Here the calculation of damages was not at all clear-cut and Mr Bird succeeded in getting an award that was as close as could possibly be to the High Court jurisdiction. That was, in my view, sufficient to characterise the proceedings as “exceptional” for the purposes of Section 17(2). Indeed, if the discretion conferred by Section 17(2) was not to be exercised in the circumstances here, it begs the question of when the discretion might be exercisable.

149. I also agree with O’ Moore J’s conclusion that the proceedings involved an exceptional question of law. The question of whether and in what circumstances the defence of qualified privilege extends to publications to all the world is clearly such a question, as is evidenced by this Court’s decision to grant leave to appeal, as well as the terms of this judgment. That the High Court clearly considered the defence to be without substantive merit was not, in my view, a valid basis for denying a special certificate here. Of course, it may be said that the qualified privilege issue was introduced by Iconic and therefore played no role in Mr Bird’s decision to commence proceedings in the High Court. But that, in my view, would be to take too cramped a view of Section 17(2), which is concerned with whether it was reasonable in the interests of justice that the proceedings should have been commenced and determined in the High Court. The issues raised by Iconic’s plea of qualified privilege were such that it was reasonable that the proceedings should have been determined in the High Court. Notably, no application to remit the proceedings was brought at any stage by Iconic but, in the event that such an application was made, the High Court would have been justified in refusing it on the basis (inter alia) that the High Court was the appropriate forum in which to determine the qualified privilege issues. I would also observe that the High Court would have been entitled to refuse to remit on the basis explained by this Court in O’ Connor v O’ Brien [1925] 2 IR 24; see also Mitofsky v Tolkin (1930)

64 ILTR 40 (a defamation case). No High Court judge hearing an application to remit these proceedings to the Circuit Court could properly have formed the view that an award of damages in excess of €75,000 (the jurisdiction of the Circuit Court) would have been set aside as excessive. That is particularly so given the involvement of a jury: Mitofsky v Tolkin.

150. Iconic emphasises that an appeal court is not entirely at large on the issue of costs and submits that the Court of Appeal was wrong to interfere with the High Court’s discretion here. I agree that an appellate court should give significant weight to the views of the trial court as regards disputed issues of costs: see in that regard my judgment for the Court of Appeal in TAO v Minister for Justice [2021] IECA 293, §30 where I sought to draw the relevant authorities together, including this Court’s

decision in Nash v DPP [2016] IESC 60, [2017] 3 IR 320 on which Iconic relied in argument. In my view, however, the High Court Judge erred in his approach to Section 17(2) by failing to give sufficient weight to the existence and rationale of the discretion conferred by that section and in failing to give adequate weight to the fact that the award made by the jury was only marginally short of the High Court jurisdiction. He also erred in his characterisation of the qualified privilege issues. In the circumstances here, the case for exercising the discretion conferred by the Oireachtas was unanswerable and it was wholly unjust to penalise Mr Bird by refusing him a certificate. Accordingly, the order made by the Judge was outside the range of orders reasonably open to him and the Court of Appeal did not err in setting aside that order and substituting the order it did.

151. I would therefore dismiss the costs appeal.